[Relevant documents: The Fifth Report of the Joint Committee on Human Rights, Session 2008-09,Counter-Terrorism Policy and Human Rights (Fourteenth Report): Annual Renewal of Control Orders Legislation 2009, HC 282.]
I beg to move,
That the draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2009, which was laid before this House on 3 February, be approved.
The purpose of the order before the House today is to renew the Prevention of Terrorism Act 2005. Sections 1 to 9 of this Act automatically expire after one year unless renewed by order subject to affirmative resolution in both Houses. The effect of this order will therefore be to maintain the powers set out under the Act until the end of March 2010. That will allow us to continue to use control orders to tackle the threat posed to national security by suspected terrorists whom we can neither prosecute nor deport. Since last year’s debate on the renewal of the Act, we have had the opportunity to consider the control order powers in some detail. During the passage of the Counter-Terrorism Act 2008, we considered a number of Government and Opposition amendments to the original powers.
In setting the scene for today’s debate, it is important to remember that we have witnessed a number of significant attacks and attempted attacks on our country in recent years. I know that all hon. Members, whatever their views on control orders, acknowledge that. Those assaults undermine our fundamental rights and values through the indiscriminate murder of innocent people. The threat to the UK from international terrorism remains real and serious. Recent trials and investigations have shown that terrorist networks are continuing to plan and attempt to carry out terrorist attacks. We need a broad range of responses to reduce the risk of further terrorist attacks, and our responses must ensure public security while protecting our values and civil liberties.
The Minister may know that a number of Conservative Members believe that control is essential, but that control orders themselves are defective. Does he not agree that the real problem is the intertwining of control orders with the human rights legislation and that it would be far more effective if we gave people fair trials, followed due process and adhered to habeas corpus, while ensuring at the same time that the House is able to legislate on its own terms to deal with those very real problems, which I fully acknowledge exist, as he said?
I accept the hon. Gentleman’s point and I know that there is no disagreement among any of us about the need to tackle people who threaten our way of life. I accept that absolutely, but I also accept that there is disagreement among and between us as to the correct balance between protecting our civil liberties and doing so in a proper way that is consistent with human rights.
The Government’s view—and it is my view—is that control orders actually plug a gap. In that sense, nobody is in favour of having control orders if we could possibly do without them, but they plug a gap in circumstances where we cannot prosecute and we cannot deport. That is the gap we are trying to fill. The hon. Member for Stone made a point about human rights legislation. All along the line we have tried to ensure that what we do is consistent with such legislation. Various court judgments have been issued, and I shall say more about that in a moment, but I am well aware that we have only an hour and a half for debate and many Members wish to contribute.
We take our cue from what the courts say. No doubt more will be said about the European Court of Human Rights later, but the House of Lords said in October 2007 that the control order regime was not unlawful; and in October 2008 the Court of Appeal reconsidered that and once again concluded that what we were doing was right. As the hon. Gentleman knows, that is subject to an appeal in the House of Lords, which is ongoing. The European Court of Human Rights judgment, to which he alludes, will inform that debate, but with the use of special advocates—and our ability to provide various other safeguards—we believe that a reasonable compromise is being made between protecting the public and ensuring that human rights are respected.
My question is much simpler. The Minister has repeated the argument of the Home Secretary who introduced this measure back in 2005—that people are put under control orders because of the seriousness of the risk they pose to the public. Will he give us his assessment of the seriousness of the risk posed by the one in five who have escaped control orders?
If anyone absconds or breaches a control order, it is a serious matter, and we do not want to see such breaches. It is a criminal offence to breach a control order. We would obviously want to recapture those people and bring them back under the control of the courts under the control order system. The right hon. Gentleman is quite right to highlight that issue. We do not welcome such breaches: we are obviously unsure about where exactly these people are, and if we knew, we would bring them back under the control order system.
I will give way shortly, but we have only an hour and a half, and a number of Members wish to speak. I have given way to a couple of Members, but if I give way to half a dozen, or seven or eight, some Back Benchers who deserve to be able to contribute will not be able to do so. However, the right hon. Member for Haltemprice and Howden (David Davis) made a serious point about absconders. We need to ensure that the obligations that we place on individuals are properly policed and controlled, and that we do all we can to bring those absconders back under the control order system.
If one in five people is absconding and not being found, that raises the suspicion that they do not pose a serious threat, because the Government, or the authorities, do not appear to be making the effort to find them that one would expect.
With respect, how does the hon. Gentleman know that? The one in five who has absconded may have gone abroad. We do not know what the position is.
We have a system that we introduced in an attempt to control individuals whom we have reason to suspect of posing threats. If the hon. Gentleman’s point is that the control order system should be abolished, he will have to answer the question “What would you put in its place?”
My hon. Friend is absolutely right. It is no coincidence that those who are raising the deficiencies of the control order system are the first to argue for not a strengthening but a weakening of that system. My hon. Friend knows, as a Minister, that it is a very inadequate system, but surely the answer is to strengthen it and not to do what the Opposition want to do—get rid of it altogether for anyone who falls below the threshold of evidence under which they may be charged and found guilty. Doing nothing when there is unconstrained intention and unconstrained capacity—given the existence of radiological and biological weapons—to murder thousands, perhaps hundreds of thousands, would leave a Government with no weapon at all with which to protect national security.
As a former Home Secretary, my right hon. Friend is obviously aware of the gap that we are trying to plug. He has made exactly the point that I tried to make to the hon. Member for Gainsborough (Mr. Leigh). If we do not use this system, what do we put in its place? How do we plug that gap? I should also point out that we have tightened the system, and no one has absconded since June 2007.
The former Home Secretary, the right hon. Member for Airdrie and Shotts (John Reid), mentioned evidence. I have here a briefing from Liberty, which tells us that we should allow the admissibility of intercept evidence so that people suspected of terrorist crimes could be prosecuted in the courts in the normal way.
My hon. Friend will know that intercept evidence is the subject of the Chilcot review which is currently taking place. A number of Privy Counsellors from all the main political parties in the House are considering whether it is possible to use intercept evidence without compromising national security. There are differing views about that.
I suggest that my hon. Friend read the report by Lord Carlile, who points out that following consideration of a number of control orders, it was concluded that the use of intercept evidence would not have made any difference in, I believe, nine cases.
I want to make some progress now—
The Coroners and Justice Bill proposes the use of intercept evidence in coroners courts. If interception takes place in countries other than the United Kingdom, it is admissible in our courts. Bugging people’s cars, homes or suits, for that matter, is allowed in our courts. Why can we not make more progress in regard to intercept evidence obtained here?
My right hon. Friend makes a point that a number of hon. Members across the House have repeated. That is why the Chilcot review has been set up. Highly esteemed Members of this House, from all the main political parties, are considering whether what my right hon. Friend suggests is possible. No doubt many of the points he makes will be considered by that review.
Prosecution has been, and continues to be, our preferred approach, because terrorists are criminals who attack the values that we all share. In 2008, 51 people were convicted in 18 terrorism cases, with 21 individuals pleading guilty. Those figures underline the considerable success that the police and intelligence agencies have had in disrupting terrorist plots, and that the Crown Prosecution Service has had in prosecuting those individuals.
We remain absolutely committed to enhancing the ability to prosecute terrorists. Thus, the Home Office is taking work forward to implement the recommendations in last year's Privy Council review report on the use of intercept as evidence. However, the report explained that in a review of nine control order cases by independent senior criminal counsel the use of intercept as evidence would not have enabled criminal prosecutions in any of those cases—in other words, it would not have made any practical difference.
Where we cannot prosecute suspected terrorists, and the individual concerned is a foreign national, we look to detain and then deport them. Last month's House of Lords judgments in three cases, including that of the Jordanian Abu Qatada, demonstrated that the Government's policy of deportation with assurances is compatible with the European convention on human rights.
The Minister has assessed the workings of this legislation. What assessment has he made of the impact on community relations and community co-operation of the draconian powers that are now held by Ministers and the police in these matters?
It is the same assessment, to be honest with my hon. Friend, as I make with respect to any anti-terrorist legislation: if we talk to communities, explain to them and discuss with them all these various issues, we overcome some of their misconceptions and concerns. As I know he will agree, the enemy is the terrorist; it is not a particular faith, religion or group of people. As long as we explain that the action being taken is proportionate, and as long as we explain why it is being done, I think that we can overcome some of those concerns. I appreciate that he genuinely believes that we run a risk if we do not deal with the matter properly.
I am grateful to the Minister but perhaps if we had more than an hour and a half to debate these important matters, he would not be under such pressure to answer questions from Back Benchers. On the issue of terrorism, which is the reason why we are debating the order today, I understand from reports in the press that 40 per cent. of the CIA’s intelligence services are working in the United Kingdom, tackling religious extremism. Would he comment on that, because it takes the special relationship that we are supposed to have with the United States to a new level and, more important, it highlights the fact that perhaps we are starting to be part of the problem, rather than the solution?
Let me say, without commenting on the specifics of the amount of intelligence work that is or is not being done, that the work of the intelligence agencies, whether the UK’s intelligence agencies or those of other countries with which we are working in co-operation, is essential if we are to tackle the threat that exists in our country and in other countries. I know that the hon. Gentleman would agree. As I said, I do not wish to comment on the specifics.
Despite improvements in our ability to prosecute or deport individuals who pose a threat to national security, there is a small group of individuals whom we can neither prosecute nor deport. Control orders are intended to protect the public from the risk that those individuals pose. For the past four years, they have been a valuable and targeted tool in our fight against terrorism.
Each order places a tailored set of obligations upon an individual to help prevent or restrict him from engaging in terrorism-related activity. The orders are not imposed arbitrarily—a judge must agree that they are necessary and proportionate—and they are subject to regular and rigorous review. There are currently 15 control orders in force and only 38 individuals have ever been subject to a control order. However, even if it is a small number, we should still take that seriously.
We accept that control orders cannot entirely eliminate the risk of an individual's involvement in terrorism-related activity. Indeed, the independent reviewer of the operation of the terrorism legislation, Lord Carlile, notes in his most recent report that he has seen some material showing that a few controlees
“manage to maintain some contact with terrorist associates and/or groups.”
I believe that has been alluded to previously. However, it is absolutely clear that the obligations in place under control orders make such involvement more difficult. It is for that reason that the Act itself refers to
“preventing or restricting involvement…in terrorism-related activity.”
The Government believe that control orders should be imposed for as short a time as possible, commensurate with the risk posed. In terms of the individuals currently subject to control orders, seven have been subject to orders for less than a year and only five have been subject to them for more than two years. The High Court has supported our view that a control order can be justified beyond two years. Mr. Justice Collins recently found that if there is evidence that an individual remains a danger, the control order should continue for as long as necessary.
No, there has not.
The highest court in the land has upheld the control order regime, reflecting the substantive and rigorous judicial checks and balances in that system. The Law Lords are currently considering what measures are necessary to safeguard the right to a fair trial in control order cases. Their deliberations will, no doubt, take into account relevant jurisprudence, including the House of Lords judgment in 2007, the Court of Appeal judgment of October 2008 and the recent European Court of Human Rights judgment in the case of A and others.
Our view remains that supported by the Court of Appeal last October: that there is no irreducible minimum level of disclosure that is necessary to ensure that control order review hearings are compatible with a right to a fair trial. The individual is already given as full an explanation as possible of the reasons for the imposition of a control order, subject to legitimate public interest concerns, and each case is determined by an independent judge who has all of the relevant material before them.
I have listened carefully to what the Minister has said. He will be aware of the danger of selectively choosing court judgments that agree with his position. He has referred to the ECHR judgment in A, which I and the Joint Committee on Human Rights believe leaves no doubt that the gist of the case against the controlee must be given. It will be very hard for the Minister to cite the Court of Appeal judgment that matches his view over what was a very clear judgment from the highest court in respect of human rights.
The hon. Gentleman will know—and my hon. Friend the Member for Hendon (Mr. Dismore), the Chair of the JCHR, is sat behind me—that I take human rights issues extremely seriously. I do not just dismiss them; they are important, and in this debate it is necessary for us to consider the interaction of national security versus the infringement of an individual’s liberties. I quote the courts because, at the end of the day, that is why we have an independent judiciary. The hon. Gentleman says that I selectively quote, but the House of Lords will determine whether the Court of Appeal view of what the Government were doing is correct, and the ECHR judgment to which he has referred will inform that debate. We await with interest the outcome of that judgment in a few months’ time.
It would be remiss of me not to place on record the Government’s thanks to Lord Carlile for yet another thorough report, which will, no doubt, inform today’s debate. We will, of course, respond formally in due course, as we also will to the JCHR’s most recent report on control orders, and I also thank my hon. Friend the Member for Hendon and his Committee for that report and the speed with which it managed to produce it, in time for this debate. Lord Carlile continues to view control orders as
“a largely effective necessity for a small number of cases”.
He further notes:
“The control order system as operated currently in its non-derogating form is a justifiable and proportional safety valve for the proper protection of civil society.”
That view is shared by the other two statutory consultees: the intelligence services commissioner and the director general of the Security Service.
We currently face a threat from terrorism that is sustained and indiscriminate. We need to protect the public while ensuring that our fundamental rights and values are safeguarded. Control orders are by no means the whole answer to dealing with the threat we face, but they are an important part of our overall approach. The risk to the public would increase were the Act not to be renewed. I commend the order to the House.
May I begin by agreeing with the Minister about the nature of the threat and by placing on record our thanks to the men and women of the Security Service and the police, who keep us safe? I also agree with him that nobody wants these orders; well, I am not entirely sure that I speak for the right hon. Member for Airdrie and Shotts (John Reid), but I think it is widely agreed that nobody wants them.
May I place it on the record that I find the orders unsatisfactory? I said that there were so many flaws with them that it was like trying to keep soup in a sieve but, unlike some on the Conservative Benches’ I wish to see the regime strengthened in order to protect the public, rather than weakened.
I am grateful for that clarification and for the fact that the right hon. Gentleman thinks the orders are unwelcome—I hope we will be able to provide a satisfactory answer for him.
This is the fourth time that the Government have come to Parliament to ask for a renewal of authority for these orders, and those of us who were here in the previous Parliament are unlikely to forget the circumstances of the passing of the Prevention of Terrorism Act 2005, from which these orders spring. The requirement for these measures was exceptional and was a response to an inconvenient judicial ruling striking down part 4 of the Anti-terrorism, Crime and Security Act 2001. The powers taken under the 2005 Act breached fundamental expectations about habeas corpus and wider liberties that we seek to sustain in Britain for our citizens. Conditions being imposed on Britons on the direction of the Executive without due process are a profound departure from the British tradition and the view that we would like to have of our values. This was an implicit victory for the terrorist, and one that should be reversed at the earliest possible opportunity. It was the desire of the Conservatives to impose a sunset clause on the 2005 Act to force the Government to return to Parliament with a Bill that would be properly considered in all its stages. Legislating in haste normally allows us to repent at leisure, and that was the case with the rush that accompanied the 2005 Act.
Does my hon. Friend agree—I very much agree with him that a proper Bill passed at Westminster would be the right way to go about things according to our legal system—that in the light of our commitment to repeal the Human Rights Act 1998, it would be sensible for us also to commit to having our own legislation to deal with this severe problem and to protect habeas corpus and other rights of fair trial, in which the Conservative party believes, as, I hope, we do as a nation?
My hon. Friend is more learned about these matters than I am, but I hope that, once we had repealed the Human Rights Act while remaining subject to the European convention on human rights, our proposal for a Bill of Rights would give the United Kingdom the margin of appreciation that would help to advance his objectives.
If the former Home Secretary will allow me, I shall make some progress.
The sunset clause was the mechanism that would have held the Government’s feet to the fire, to force progress on the other measures that would end the need for this legislation. Control orders replaced detention for foreigners suspected of terrorism who could not be convicted because the evidence could not be admitted in court and could not be deported because of concerns about their fate on their return home. Two principal methods can help to overcome these problems: first, enabling intercept communications to be presented as evidence in court, as in many other jurisdictions; and, secondly, concluding agreements with the countries to which these people should be deported, so that their treatment would meet proper standards and they could be safely deported.
In those circumstances, the other place accepted the Government's assurances on these and other points, and compromised with annual renewal rather than a sunset clause. Four years later, even the most generous supporter of the Government could hardly describe their progress on these matters as rapid. Sir John Chilcot’s review accepted the principle of intercept communications as evidence, but the latest statement by the Home Secretary was highly equivocal and certainly did not convey the impression of an Executive pressing for progress so that the powers we are discussing today, which are an affront to our traditions of liberty, can be disposed of.
Almost no progress is being made on deportation orders. In a parliamentary answer in July 2008, the Government said that they had achieved agreements with Jordan, Libya and Lebanon in 2005, and with Algeria in 2006—there was nothing in 2007, but they said they were pursuing agreements with a number of other countries. The only progress made since has been an agreement with Ethiopia in December 2008, and although I am sure that Mr. Binyam Mohamed will welcome that news, the overall picture hardly reflects an Executive straining every sinew to escape from the need for control orders.
Does the hon. Gentleman share my concern that we are in danger of making one-off agreements with countries that have not signed up to any other aspect of international law on, or conventions against, torture—and, in some cases, even the human rights convention? Does he not think that we should put pressure on all countries to sign up to international law before making exceptional agreements outside it?
I agree that we need to put pressure on countries to stop torture. Indeed, many of the countries with which the memorandums of understanding exist are party to the convention—[Interruption.] No, I understand that not all are. However, MOUs between the UK and other countries are a way of exerting that pressure, and they are a step forward in pointing out to those countries that certain standards are expected and required, not least by the UK.
I do not know how the hon. Gentleman can say that it puts any pressure on another country to say, “It’s ok, we’ll do a deal with you even though you are a torturer.” Is it his party’s view that we can trust a torturer, especially one who has signed up to the UN convention against torture and is therefore breaching that solemn international obligation, to adhere to a one-off agreement on an ad hominem basis on a fingers-crossed contingency? Is that the Conservative party’s policy on torture?
The hon. Gentleman’s characterisation of the issue is ludicrous and not one for the real world. A one-off agreement on a fingers-crossed basis is not how I would describe a solemn memorandum of understanding between the UK and another other sovereign Government. There would be serious concerns if MOUs on torture were breached, and that would be a disaster for the countries involved.
I know of the hon. Gentleman’s past commitment to national security and I fully understand that in some sense he has inherited this policy. However, as I have clarified my position, perhaps he will clarify the Opposition’s position. What should happen to a person who is reasonably suspected of being likely to commit an act of terrorism, perhaps resulting in thousands of deaths, but for whom we cannot—even with intercept evidence—reach the threshold necessary to charge and convict in court? What is the Conservative policy on such a person? Is it just to let him go free?
As the right hon. Gentleman knows, control orders are an unsatisfactory answer. We have to reduce the need for control orders as much as possible so that we can find means other than the appalling affront to our liberties that control orders represent to achieve our aims. I shall go on to explain how that should be achieved.
I wish to remind the House of what was said by my party on the last two occasions that these orders were renewed. In 2007, my hon. Friend the Member for Newark (Patrick Mercer), who is now proving such a distinguished chairman of the Home Affairs Committee’s counter-terrorism sub-committee, first of all critiqued the effectiveness of the regime, and supported the extension with great reluctance. But he warned the Government that they could not expect our support indefinitely, saying:
“We have to bring the system to an end and we have to end the injustice”.—[Official Report, 22 February 2007; Vol. 457, c. 443.]
By 2008, responsibility for these matters was taken by my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve), who so distinguished himself in the debates on the 2005 and the 2006 Acts that followed. He told the House that the only reason we were not voting against the renewal order in 2008 was that
“we could use the Counter-Terrorism Bill and the opportunity for debate surrounding it to have some sensible discussions that could lead to the Government having sufficient confidence to decide that this order will not require renewal at all next year.”—[Official Report, 21 February 2008; Vol. 472, c. 569-70.]
However, he correctly predicted that the Bill would end up in a confrontation over 42 days’ pre-charge detention and that there would be no opportunity to have such a sensible discussion.
Since 2005, we have had two major legislative opportunities to address the control order issue in the Terrorism Act 2006 and the Counter-Terrorism Act 2008. In the event, the passing of both Acts was dominated in the public debate by the issue of pre-charge detention. In 2005, this House rejected the Government’s efforts to set this limit at 90 days, compromising on an increase from 14 to 28 days, and last year the Government just got their way here on increasing the limit to 42 days, courtesy of support from the Democratic Unionist party—the cost of that decision will no doubt continue to be counted for some time—but then running into a resounding rejection of their proposals in another place. That saw the withdrawal of the proposals, with something less than good grace, by the Home Secretary. The opportunity to address the control order regime was not taken, and so here we are again.
Since then, we have had the fourth review by the noble and learned Lord Carlile of Berriew, which was so heavily leant on by the Minister in introducing the order. However, the noble Lord has made the point that control orders cannot be used as a permanent disposal for people in these circumstances. In 2008, in his third report, he said:
“Last year I advised that, as a matter of urgency, a strategy is needed for the ending of the orders in relation to each controlee: to fail to prepare for this now whether on a case-by-case basis or by legislation (if appropriate) would be short-sighted.”
He also said:
“I advise that there should be a recognised and possibly statutory presumption against a control order being extended beyond two years, save in genuinely exceptional circumstances.”
Will my hon. Friend also remind the House that the Liberty report makes it plain that a number of the controlees have been the subject of control orders for three or four years and that some of them were held in Belmarsh before that time? They have been in detention for more than four or five years.
My right hon. and learned Friend naturally anticipates the point that I am about to make. However, let me return briefly to Lord Carlile, because for some reason he did not return to the issue in his fourth report. Perhaps he got fed up with repeating himself and with the Government’s not paying any attention. I have established by parliamentary question, answered on 12 February, that two controlees have now been under orders for more than three years and three for between two and three years. That figure could have been as high as nine had six of those subject to orders between April 2006 and February 2007 not absconded. The conclusion is that the Government have not bothered satisfactorily to remedy the situation, despite requests from us and the independent reviewer to do so.
When I was appointed to this post just over a month ago, I was conscious that, unusually, this was not about the Opposition making a statement but was likely to be a decision about the conduct of Government policy. If the Conservative party opposes these orders, the Government, with their majority, will probably carry the day in this place. However, that will probably not be the case in the other place, which will address the issue of renewal on Thursday. As the Government have to convince both Houses and as these powers expire on 11 March, they would have to have an alternative monitoring scheme in place for the 15 individuals within 40 days. Is an operational plan in place in case Parliament declines the Government’s request for renewal? Any alternative plan would presumably involve appropriate levels of surveillance, helped by the fact that much of it will not have to be covert as the target will anticipate that his activities will be monitored.
Can we assume that not all the measures have to be new? Presumably there is already additional surveillance of the individuals in addition to the control order measures, not least because of the high proportion of absconders. We know that comprehensive surveillance is expensive and human resource intensive, and that it will require an appropriate plan for each individual. To achieve equivalence with a control order regime, however, foolproof surveillance is not the standard as a fifth of those subject to control orders have absconded.
The control order regime is also expensive. We have some idea of the cost from the answer given to my question yesterday. The cost of elements of the control order regime that I identified was more than £3 million without the cost of the supervision arrangements or the costs of the control order review group. The current arrangement is costing well over £200,000 a year per controlee.
Control orders should be assessed in the context of the whole counter-terrorism strategy, as well as in the context of the financial cost. I believe that they do damage to the “prevent” element of the strategy because of the message of oppression that they impart to those vulnerable to being suborned into violence against our state, its institutions and people. Have the Government conducted an impact assessment of the control order regime on vulnerable communities? The Minister’s answer to the hon. Member for Islington, North (Jeremy Corbyn) suggested that their assessment is based more on talks with the communities, but I think that something rather more rigorous is required.
Control orders also damage our wider sense of security because of the exceptional measures that are viewed by the Government as necessary. They do damage to the basic notion of British liberty and the values we seek to defend. As for the benefits, they are a temporary patch on a hole in our defences that has been created because we have not yet had the wit to find a way to convict or deport people we believe to be associated with terrorism. If we were not so close to a general election, I would not hesitate to recommend to my right hon. and hon. Friends that we vote against these measures and rip this patch off because, in isolation, the system of control orders is defective.
Such a recommendation would come in spite of the natural wish of a patriotic party in opposition to give the Government the benefit of the doubt when they claim that national security at stake. The difficulty that we face is that, in one disreputable episode after another, the Government have forfeited any benefit of the doubt on their most sacred responsibility, which is to keep the nation safe. They do not need to take that from me, as the hon. Member for Thurrock (Andrew Mackinlay) expressed the sentiment eloquently last week, following the statement on the non-release of Cabinet minutes relating to the decision on the Iraq war.
I have to say that I share the hon. Gentleman’s sentiments. Coming to the view that we should not obstruct the renewal of the measures today is not about giving this exhausted and discredited Administration the benefit of the doubt, but about finding the most appropriate way to prepare for the likely exercise of these responsibilities by June next year.
I do not know the result of the next election. It would be both impertinent and unwise to presume on the electorate, but I think they would expect an aspirant Administration preparing to take on responsibility for counter-terrorism and security policies to treat the prospect with the utmost seriousness. Therefore, my analysis is based on the assumption that we will be faced with those responsibilities by June next year.
Our counter-terrorism legislation is at best a bureaucratic mess, and at worst has powers that make the situation worse. Let us consider just how we have arrived at this point: the Terrorism Act 2000 was followed by the Anti-Terrorism, Crime and Security Act 2001, which was implemented in a hurry after 9/11. Further legislation in 2003 made amendments to the 2000 Act, while the Prevention of Terrorism Act 2005 was required after the 2001 Act was found to be inconsistent with the Human Rights Act 1998. Then the Terrorism Act 2006 was implemented in the post-7/7 environment, and after that came the Counter-Terrorism Act 2008. Throw in two Northern Ireland Acts for good measure and we have as confusing a pot pourri as any lawyer could desire. It has presented us with the ridiculous juxtaposition of Abu Qatada receiving a deportation order one day, and compensation the next. The warning about the opportunity being created issued by my hon. and learned Friend the shadow Justice Secretary has been fully justified.
The case for consolidation is overwhelming, and it was made by a Labour Home Secretary more than three years ago. On 2 February 2006, the right hon. Member for Norwich, South (Mr. Clarke) said that he intended to
“plan for the development of a draft Bill that takes into account all the work that I have laid out to be published in the first half of 2007 for pre-legislative scrutiny.”—[Official Report, 2 February 2006; Vol. 442, c. 479.]
The 2008 Act dealt with little of the work that he referred to. No progress was made on intercept as evidence, and no change arose from the review of the operation of control order. Therefore, the overwhelming case is not only for consolidation but for a full review of the powers that the state has taken.
The review and consolidation should be comprehensive and not piecemeal. The fact that we are probably within touching distance of being able to complete the review with the benefit of the advice available to a Government has decided me in favour of not removing the patch on the hole in our counter-terrorism strategy that control orders represent. On those grounds, I ask my right hon. and hon. Friends not to vote against these orders today, but I want to make it clear to the House that the consolidation and review of counter-terrorism legislation to be carried out by the probable next Administration will begin from the position that we will replace the present control order system. We will also seek to end the abuse of stop-and-search powers under terrorism legislation for non-terrorist-related incidents, and to address controversial offences relating to the distribution of literature and glorification.
Perhaps most important of all, we will allow intercept to be used as evidence in our courts. Achieving that goal will enable us to deliver to public justice more of the people who seek to murder in pursuit of authoritarian theological and political goals in our open society. Such public justice should help to shake any complacency out of communities where our citizens are under direct threat of being suborned.
I hope that my right hon. and learned Friend will forgive me, but there is still an hour for other people to get in.
In office, if we are so trusted, we will seek to send the message that we understand the values that we are seeking to defend from those who would violently challenge them outside the democratic sphere, and we will use our powers intelligently to find the right balance for an open, liberal democracy engaged in that battle.
This is a task to be carried out coherently, comprehensively and seriously, and that is what the Conservative party pledges to undertake. Too many of the emblematic battles between us on these issues have related to attempts to create party political positioning rather than the most effective defence of our democratic institutions and citizens. The result has been ineffective authoritarianism that has undermined our effectiveness and credibility. It is time for that to change.
It is always a pleasure to follow the hon. Member for Reigate (Mr. Blunt), who spoke with such passion and gave such a careful critique of the control order policy that I thought he would announce that the Opposition would vote against the Government. He certainly had the support of one or two Labour Members—not me. I was surprised that he did not announce that.
The hon. Gentleman may not prejudge the electorate, but he informs us that a general election is imminent, then tells us that it is likely to be in June next year. I should have thought that if the Conservatives really were against control orders, they would vote against them, rather than make an argument against them then vote in favour of them. I am not sure what the Liberal Democrat position will be tonight, but I would hate to be in a debate where everyone said how awful control orders are, including the former Home Secretary who introduced them, who said that he did so reluctantly, and for the whole House then to vote for them.
We meet on a day on which we are very conscious of the serious threat of terrorism, because of the events that occurred in Pakistan today, where cricketers on their way to a pre-arranged match were subjected to a terrible terrorist attack. Thank goodness none of them was killed, but others were killed in that attack, which appeared to be carefully constructed and prepared. Of course, that happened thousands of miles away, but the nature of global terrorism is that it can occur anywhere.
That is why many of us, even though we have reservations—I have reservations about the continuation of the orders—give the Government the benefit of the doubt, and believe that when they come to the House and ask for renewal, they do so in a genuine way, with the evidence and the information before them. Obviously, they cannot put all that information before the House, but we accept the points that they make.
The most devastating intervention in the debate so far has been the right hon. Gentleman’s, when he asked how many orders had been imposed in an emergency. The answer was none. Surely if the orders meant anything, more of them—or indeed some—would have been imposed. Is this not government by fig leaf? This is a totally artificial debate. The orders are not being used.
The hon. Gentleman is right. It is an artificial debate when the Opposition are dead against everything that the Government intend to do but will vote for the order. Will the hon. Gentleman vote for the order today, along with other Conservative Members? Of course there is surrealism about the debate.
My right hon. Friend will recall the many debates that used to be held about the continuation of the prevention of terrorism Acts, which were routinely renewed every six months, in which everybody said that they were against it and deeply reluctant, but went ahead and did it nevertheless. Eventually the error of their ways was seen and there was a different approach, a different attitude and a different solution in Northern Ireland. Can we not think again about the danger of taking away people’s liberties routinely by a simple vote in the House—or on some occasions by no vote in the House?
Yes, we should. I remember that my hon. Friend always voted against, so for that purpose he was on the side of the angels. Today a motion for renewal is before the House. The Government say that they have to renew, for the reasons that they give. They say that they have no alternative, they cannot go through due process and they have to use such orders. The Opposition say that they are against the Government but, apart from the Liberal Democrats, everyone will vote in favour.
I am interested in the example that my right hon. Friend gave about the atrocity that took place in the past 48 hours against Sri Lankan cricketers. That happened in a country that not only has access to control orders, but has access to regular torture of suspects. I should have thought that if ever there was an example of repressive measures not controlling terrorism, it was that one.
I do not know which group was responsible for that terrorist attack, but I was using it as an example of the fact that that was happening all over the world and could happen here. We have to guard against the dangers of terrorism. It is a very serious matter, and I am sure that this Minister and this Government take it very seriously indeed.
I have just three or four points to make, one of which the hon. Member for Gainsborough (Mr. Leigh) has reminded me about. It is the fact that the Home Secretary has not had to use the powers in the legislation to impose an urgent order. I wonder whether that is because things are getting better, so there is no need for the Home Secretary to use those powers. The powers are reviewable by the courts within seven days of the order being imposed. When the Minister winds up the debate, perhaps he will explain whether what I have referred to is a sign that matters are improving in the fight against terrorism.
That is a correct analysis of what the courts can do in those circumstances.
I have three quick points to make. The first was made by my hon. Friend the Member for Islington, North (Jeremy Corbyn), and it relates to the effect on the community. We do not know who the people are, but as I have said in many debates on counter-terrorism, I am concerned about the impact of legislation in this field especially on the south Asian and Muslim communities. When the Government ask for orders such as this to be renewed, they need to come before the House and give us examples of community engagement. I am thinking of examples of how they have reassured the community that the order is about a very tiny proportion of the community, that very few people engage in acts of terrorism, and that the order should not be seen as an attack on the community as a whole. The order disproportionately affects members of the Muslim community; I would imagine that either all 15, or 14 of the 15 people involved—I do not know who they are—are members of the Muslim faith. If the Minister has the information, perhaps he will put it before the House.
I agree with what my right hon. Friend the Member for Holborn and St. Pancras (Frank Dobson), my hon. Friend the Member for Pendle (Mr. Prentice) and the hon. Member for Reigate (Mr. Blunt) have said: why is there a delay in accepting intercept evidence in court proceedings? We should go through the due process about which the hon. Member for Stone (Mr. Cash) spoke. We would all like people to be brought before the courts through due process, which is how these cases should always be dealt with. There should be proper legal representation, with the person being informed in advance of the case against them so that they can argue their case and gather their evidence. The way to ensure that is to accept that intercept evidence should be part of court proceedings. The Home Affairs Committee, some distinguished members of which I see here today, accepted that unanimously, and the Government should accept it.
Can the right hon. Gentleman understand why the important process of allowing intercept evidence to be heard in court has taken so long? For the past two or three years, he and I have been discussing the issue. I was a practitioner of this particular use of intercept at least two decades ago, and the issue seems to have been in the public domain for absolutely ages. Can the right hon. Gentleman spread any light on or understanding about what is delaying the Government?
Perhaps I can help both the hon. Member for Newark (Patrick Mercer) and my right hon. Friend the Member for Leicester, East (Keith Vaz). This is not the only reason, but one of the reasons why there has been such prolonged consideration of the matter is that the people in our intelligence services, who have to engage in the fight against terrorism day in and day out, have warned that there would be a huge diminution in their capacity to counter terrorism if we introduced intercept evidence willy-nilly into British courts. [Interruption.] The hon. Member for Newark may not accept that, but I find it disturbing how the advice of the people at the front line of this fight is constantly thrown aside as if it did not matter.
I say to the right hon. Gentleman—[Hon. Members: “Friend!”] I should say “my right hon. Friend”—a close, personal friend. [Hon. Members: “Comrade!”] No, I think that comrades have been abolished. I say to my right hon. Friend that we take what the security services say very seriously. I am not saying that they are responsible; all I am saying is that this has been in the public domain, as the hon. Member for Newark (Patrick Mercer) said, and I think that the Government should just get on with it. With the necessary safeguards, it could be of great use to us and allow orders of this kind to be put to one side as we go through due process.
My final point concerns the number of people who abscond. It is slightly embarrassing for the Government to have to renew these orders and tell us about the numbers on control orders who have absconded, bearing in mind how much money is spent on keeping them where they are. We need explanations, perhaps not on the detail of each case, but of why the figure is so high. On the figures that I have, of the 15 people held, seven have absconded. If I am wrong, perhaps the Minister can correct me; anyway, it is a high proportion. The former shadow Home Secretary said that it was a fifth, but I was told that it was half. [Interruption.] Seven out of 38; well, that is still a very high figure.
We are very pleased with that announcement— not that people have absconded but that no one has done so since January 2007. We are keen to know what has happened to those who have absconded because, given that they are under such scrutiny, we wonder why it happened and what went wrong.
It is my job to be helpful today, Mr. Deputy Speaker. One of the reasons, of course, is that people are not under surveillance 24 hours a day, because—the Minister cannot criticise the courts, but let me criticise them—when we wanted 24-hour surveillance to stop them absconding, the courts said that we could not have that and that people had to have at least eight or 10 hours without surveillance. They had to have a “shift” as a suspected terrorist, and not unsurprisingly, they absconded.
I will not give way any more; I am sorry to right hon. and hon. Gentlemen, but there is very little time. We should not go any further down this path, because that will open up a whole new debate. However, an awful lot of people have absconded given that, as the hon. Member for Reigate said, it cost £3 million to get the whole system working.
I hope that next time Ministers come before the House to discuss counter-terrorism issues they will be able to provide a better explanation of what is happening so that the House can be better informed. With those caveats, I will, reluctantly, support the Government, but they need to do much more work next time if they hope to get this order through.
I, too, thank Lord Carlile of Berriew for publishing his report in good time for this year’s renewal debate. I also thank the Joint Committee on Human Rights for making its views known in a timely fashion.
My argument is that control orders are not an appropriate instrument for a free society under the rule of law. They are unfair; they breach key rights to a fair hearing; and they get perilously close to reversing a fundamental principle of our criminal justice system, which is that we are innocent until we are proven guilty. Moreover, they are ineffective. We have heard that seven of the 38 people who have been made subject to control orders have absconded. The guilty are more likely to abscond, so the innocent are more likely to be detained. Criminal trials and custodial sentences would be a far more effective way of proceeding and protecting the public.
Let me start with the issue of fairness. These orders involve house arrest and curfew. According to Lord Carlile’s report, the average curfew was 13 hours, up from 10 hours in 2007, and the longest was 16 hours. The right hon. Member for Airdrie and Shotts (John Reid), who is no longer in his place, asked whether other means could be used. The Government could have used control orders in going before a judge to derogate from the European convention on human rights—they have not done so. Effectively, we have a system of indefinite house arrest.
I am sorry that the ex-Home Secretary is not here, because he did not give the House exactly accurate information when he spoke before. He said that the courts prevented us from keeping the people in question under surveillance 24 hours a day. That is not true, because keeping them constrained 24 hours a day is not the same as keeping them under surveillance.
I am happy to take the point of the right hon. Member for Haltemprice and Howden (David Davis); he is absolutely correct.
Control orders have a serious impact on people and their families. In one case, as we heard, a person who has been on a control order throughout this regime was previously detained in Belmarsh—detention, without a fair, evidentiary standard, of effectively nigh-on eight years.
I am grateful to the right hon. and learned Gentleman for that point. He is absolutely right: the evidentiary standard is particularly low and there is no appeal. It is particularly low because it involves merely a reasonable suspicion on the part of the Home Secretary, which is broadly the evidentiary basis that the Director of Public Prosecutions requires to charge someone with counter-terrorism offences.
My party argues that control orders breach the right to a fair hearing. A person does not know what they are suspected of. They have a limited ability to challenge and defend themselves, and the Government have said that
“introducing a requirement always to provide a summary is not appropriate”.—[Official Report, House of Lords, 21 October 2008; Vol. 704, c. 1085.]
This is surely a truly Kafkaesque situation, in which someone is held without even knowing the gist of the suspicions held against them. That will no doubt be one of the key factors in the case going to the Law Lords, which has been reported this week.
Furthermore, there is a reliance on secret intelligence, which, by definition, may be all the less reliable for being secret, precisely because sources are not open to scrutiny, cross-examination or challenge. For all we know, intelligence may have been gained through torture around the world; as we know from the recent case of Binyam Mohamed, we unfortunately cannot rule that out.
Intelligence can be wrong—very wrong. Mistaken identity is a fairly common problem. The most famous example is, of course, Jean Charles de Menezes, but another is that of Lotfi Raissi, the Algerian pilot whose life was ruined by intelligence-fuelled suspicions that ultimately proved to be entirely groundless. The grand chamber of the European Court of Human Rights in A v. the United Kingdom is the highest court to have looked at these matters, and it states very clearly that its recent decision—I quote the Joint Committee on Human Rights—
“leaves no room for doubt that basic fairness requires that at the very least the controlled person be provided with the gist of the closed material which supports the allegations made against them”.
A second issue is the sheer interminability of these orders. There are no time limits and control orders can last for long periods. Two current cases have gone on for more than three years. Effectively, that is indefinite detention. Is that really acceptable as part of our criminal justice system?
Moreover, there is a legal world within a legal world. If someone breaches their control order, they can be prosecuted and convicted. As Lord Carlile points out, three of the current 15 people affected face trials soon for breaching the terms of their orders. Although there is no evidence to bring against them in a court of law on any substantive matter, they have been made subject to a control order, and if they breach it, that becomes a criminal offence. Although they cannot face substantive charges, that is surely Orwellian.
The passage of time is one reason control orders should not be continued. The danger is that the longer someone is held, the greater is the chance that they are entirely innocent.
I have no doubt that the effect in communities that have suffered from people being held under control orders is a feeling of great injustice, or that that feeling fuels resentment and becomes a recruiting sergeant for people to join a fight that we do not want to exist.
We should learn the lesson from the cases of those held for the maximum period of detention without charge for terrorism offences. The 42 days debate made it clear that half of those held for nearly the maximum period—three people—were released without charge and without further surveillance or suspicion. It is very hard to prove a negative, which is why we insist in the British criminal justice system that someone is innocent until proven guilty. We heard nothing from the Minister today to suggest that there is any exit strategy from control orders, yet the danger of the courts holding against a prolonged control order has to be serious. At the very least, as the JCHR has proposed, there should be a statutory presumption against a control order lasting beyond two years.
Another reason for ending the system is that prosecutions are surely better than control orders, which have clear holes, as we have seen from the number of people absconding. Let us proceed instead to fair trials. The Minister said that there is gap between letting out someone who is entirely innocent and proceeding to a fair trial, but I urge the House to consider the fact that several developments have closed that gap substantially since control orders were introduced. The Minister has not addressed any of those developments. As has been said, the fact that there have been no urgent orders in the past year tends to reinforce the argument.
I am glad to hear the hon. Gentleman talk about fair trials and due process. He may know that that is exactly what my Prevention of Terrorism (No. 2) Bill a couple of years ago would have provided for. On control orders, the problem is the Human Rights Act 1998 and all that goes with it. Does he agree that it would be far better for us to legislate here in Westminster, on our own terms, and override that Act so that we can produce the results that he calls for?
I am afraid that I do not agree with the hon. Gentleman at all. His view of the Human Rights Act is extremely jaundiced and discoloured. It completely ignores the history of the Act and of its predecessor and foundation stone, the European convention on human rights, which was drafted by British and American lawyers precisely to put in place a bulwark for our freedoms. Frankly, that has stood the test of time and been terribly important. I am afraid that the hon. Gentleman is completely misguided on the matter.
I return to the developments that have made it easier to close the gap. First, there has been an enormous increase in the number of terrorism offences, under both the Terrorism Act 2006 and the Counter-Terrorism Act 2008. One answer to the right hon. Member for Airdrie and Shotts, who is no longer in his place, is that there is a power to proceed with a prosecution for acts preparatory to terrorism. Taking into account the threshold test and the flexibility that exists, it seems to me that we ought to be able to use proper, fair trials in such cases much more than we do. As Lord Carlile pointed out, that
“could increase the potential for the normal criminal process to be used against terrorism suspects”.
There is the flexibility of the threshold test for prosecution, which has the same standard of proof as control orders. If the charge is sufficiently serious, there is hardly any difficulty in persuading a judge of the need for the accused to be remanded in custody.
Other, obvious changes would make a conviction easier to secure. In the short debate, we have already dealt extensively with intercept evidence. I merely point out that in Australia and the United States, prosecutors regard it as extraordinary that we do not use intercept evidence. They do not understand how we manage to bring successful prosecutions without it, not only in terrorism cases, but in those involving organised crime.
When I spoke to the head of counter-terrorism at the Department of Justice in the United States, he said that every organised crime prosecution and the vast majority—all bar one or two—of the terrorism prosecutions there require intercept evidence. He made the point that, if intercept strategy is designed to deliver evidence, a lot of evidence is obtained. That clearly does not happen currently in the UK.
I agree with the right hon. Gentleman. Contrary to the point that the Minister made in his speech, Lord Carlile states in his report that
“the use of intercept evidence in a criminal court possibly has the potential for reducing the number of control orders”.
It is not enough to say that there are some control orders with which we might not be able to proceed. Doubtless, some people who are subject to control orders are entirely innocent. However, it is simply not good enough to say that, because we could not proceed with some control orders using intercept evidence, we should not introduce it or that it could not be used in other cases. Given that, typically, more than 2,000 warrants for interception are issued each year, it would be surprising if that were not the case.
We must remember the example that we set. Any tin-pot dictator is free to argue that the powers that he uses to buttress his regime are simply those that are in force in Britain, the mother of democracies and the mother of Parliaments. Ian Macdonald QC resigned as a special advocate for reasons of conscience, describing the control order policy as
“an odious blot on our legal landscape”.
If control order-like powers are still needed for a few individuals, they must be granted by a judge, time limited, subject to a higher standard of proof than mere reasonable suspicion, and subject to regular and thorough assessments of the possibility of prosecution. Securing convictions or letting the innocent go free should be the key goals.
Ministers said when they introduced the powers that they were only temporary. Surely after four years, the time has come for the House to hold them to their word. We will vote against the order.
Most hon. Members remember that the legislation was passed immediately before the last general election. Many of us regard that as at least one reason for the Labour party’s sustaining a seismic loss in its popular vote in the months that followed.
The Government pray in aid the independence of the judiciary for sustaining the legislation, claiming that we can pass such legislation safely because the judiciary scrutinise and, if necessary, control it. That is an undesirable state of affairs. It is undesirable that the House should be perceived as persistently passing legislation that is contrary and abhorrent to our standards and civil liberties, and as pressing up against a judiciary that is there permanently to control it. I must say to the Minister that that is not part of the natural or normal history of this country. In many cases, the House has been the guardian of civil liberty and passed legislation to curb an overactive judiciary. Indeed, that characterised the relationship and balance of power between the two. It is a sad day when the Government rely on the judiciary as an alibi for introducing such legislation, which has not been on the statute book for 400 years. The order is not the only example, but it is an especially bad one.
My second point, which is a pragmatic one, is that it is said that there is a raft of cases, the number of which is apparently small—15 in all—where the suspected offence or potential offences are so heinous that the fact that we cannot gather enough evidence to get past the threshold test of reasonable belief in guilt means that, in those circumstances, there is no option. Bringing to bear what experience I have in the criminal courts, I do not accept that. I do not believe for one moment that a raft of such cases exists. From what I can bring to bear, I have no experience, either in terrorism cases or outside them, where, if the offences are sufficiently serious and there is evidence on which a raft of people can come to the conclusion that there is a real danger of serious crime, those who are responsible for the investigation of crime will not succeed in obtaining evidence that can be placed before a jury. What is being done is not being done for judicial reasons; it is being done for convenience, and that is all. This House should scrutinise it and reject it.
My third point is that this measure is part of what is rapidly becoming a compendious indictment against us, America and other democratic states, for allowing such a state of affairs to happen. Of course, control orders are not unlawful rendition and in many ways they do not fall into the same category, in terms of either their lawfulness or their consequences. Nor are control orders in the same category as what the past 48 hours have revealed to be a travelogue of consistent torture, carried out by the CIA and now deliberately erased from its records. Of course control orders are not as important as that. But to a radicalised and radicalising world outside those democracies, they form part of a compendious indictment that we in these great democracies are prepared to abrogate the rule of law in certain circumstances, which are obviously aimed at those radicalising people in the Muslim world, and to suspend our way of life and our democracy in order to meet them.
For those three reasons—one pragmatic, one historical, and all, I hope, principled—if there is a vote at the end of this debate, I shall vote against the Government with a completely clear conscience.
In view of the shortness of this debate, I intend to be much briefer than I would be otherwise. It is a great pleasure to follow the hon. and learned Member for Medway (Mr. Marshall-Andrews) and I shall be in the same Lobby as him this evening.
Let me begin by stressing how draconian such orders can be. It is perhaps worth reminding the House of Mr. Justice Sullivan’s comments in the case of the Home Secretary v. J.J. He described and outlined the nature of such orders thus:
“Each respondent is required to remain within his ‘residence’ at all times, save for…six hours,”
although that is not quite right now. Respondents were held in one-bedroom flats. They were not allowed to receive visitors other than those approved in advance by the Home Secretary. The residences were subject to spot checks by the police. The respondents were allowed out only within carefully defined areas, not including, for the most part, where they happened to live in the past.
For the most part, respondents were not allowed to meet by prearrangement any person not approved by the Home Secretary. They were required to wear tags. They were required to notify the monitoring authority before they left and when they returned. They were not allowed to have any communication equipment other than monitored fixed lines. The practical effect, of course, was that they could not work. It is therefore perhaps not surprising that Lord Bingham said that the control order system is a form of house arrest, but without the benefit of association with fellow prisoners. It is very bad indeed.
My next point deals only with non-derogating orders. The evidence on which such orders can be made falls far short of the evidence required to sustain a criminal conviction. All that is required is reasonable grounds for suspecting that a person has been involved, or is involved, in a terrorist organisation, and a belief that the order is necessary.
My third point is that the judicial supervision involved in all this is very slight. In the case of non-derogating orders, the court will review on judicial review principles only whether the order is flawed. That is not a review on the merits; it simply asks whether the making of the order was flawed. It is true that, in the case of the derogating orders, there will be a review on the merits, but using the relatively low standard of the balance of probabilities, so the judicial intervention is slight.
I shall take up a point that was raised earlier, before I rapidly conclude. The judicial process involved is inherently flawed because the relevant material—or at least most of it—is not disclosed to the controlee. The controlee has a special advocate, but that advocate is unable to communicate to the controlee what he has been told of the intelligence, and thus cannot obtain proper instructions or learn what the controlee wishes to say on the matter.
I want to make two final points before I sit down. There is very little independent oversight of this process. It is true that the Minister must report quarterly to the House, and that we have the benefit of the independent reviewer, the noble and learned Lord Carlile. We also occasionally have reported decisions of the superior courts, but it is very difficult for the House, the public or the press to know whether what we are doing is really justified or proportionate, and whether it is being done in way that is right, proper and justified. We just do not know, and that is profoundly unsatisfactory.
Lastly, because these powers are in existence, the momentum for seeking alternatives is very much less. It is remarkable, given that Sir John Chilcot reported on intercept evidence as long ago as February 2008, that we have still made no serious progress on that. I suspect that, because these powers exist, many people who could be prosecuted are not being prosecuted, because it is so much easier for the Home Secretary to make a control order.
Had more time been available, I would have drawn the House’s attention to a number of suggestions that I have for improving these orders, if we must have them. I am not going to do that today, however, because other right hon. and hon. Members wish to speak. I am going to vote against the control orders, because they are unacceptable in a free and open society. We condemn indefinite Executive detention wherever we see it—think of the criticisms that we make of the Government of Israel—yet, in truth, we are doing exactly the same thing. We should not be doing so.
I rise to speak to my Committee’s report—the 14th to be published in this Parliament on counter-terrorism policy. Like every other report, we begin by agreeing with the Government on the importance of the obligations imposed on them by human rights law to take effective steps to protect the public from the real threat of terrorism. However, we have consistently raised a number of human rights concerns about the legislation on control orders. Those concerns include:
“The lack of opportunity for proper parliamentary scrutiny”,
“The severe extent of the obligations imposed, which have appeared to us to be so restrictive as to amount to the deprivation of liberty”,
as well as the lack of due process, particularly
“the lack of opportunity to challenge closed material”.
They also include:
“The seriousness or otherwise of the Government’s commitment to prosecution”,
and the lack of an exit strategy.
The only thing that we welcome is the fact that we got the reviewer’s report a month in advance of this debate, following our recommendation, which had been repeated on many occasions, that we should be allowed time to give proper consideration to it.
The concluding observations of the United Nations Human Rights Committee on the UK’s compliance with the International Covenant on Civil and Political Rights included a recommendation that the Government should ensure that the judicial process for challenging the imposition of a control order complies with the principle of equality of arms, which it clearly does not.
Mention has been made of the ECHR judgment in the Grand Chamber of 19 February. That concerned Belmarsh detainees, but the issues in that case are exactly the same as those affecting control orders. The Court said that special advocates could not perform their function of safeguarding the detainee’s interests during closed hearings in any useful way unless the detainee was provided with sufficient information about the allegations against him. We also drew attention to the report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, published on 17 February, which expresses concern about a “parallel legal system” developing, so undermining the rule of law.
The orders are punitive. We have seen curfews of up to 16 hours and, on average, they have gone up on from running for 10 hours last year to 13 hours in this report. Lord Brown, who ruled on this, has been misquoted. His actual view, as reported, was:
“It may be… that 16 hours it is too long. I would, however, leave it to the Strasbourg Court to decide upon that”.
The Government have interpreted that as if he was saying that 16 hours is the benchmark, but that is not what Lord Brown said at all.
I have many concerns about the issue of due process. We produced a whole series of recommendations when we debated the Counter-Terrorism Bill in the last Session, but, unfortunately, the Government did not accept any of them. I nevertheless urge the Government to consider again at least providing a statement of at least the gist of any closed material in accordance with the decision of the European Court—and, I hope, the forthcoming decision of the House of Lords—as that is the key issue in the case being tried today. The Minister’s predecessor offered to meet the special advocates who planned to describe to him the inherent potential unfairness in the regime, but unfortunately, that Minister did not keep his promise, as he was shifted to another position before, I suspect, he had the opportunity to do so. I hope that the current Minister will undertake to keep that promise.
I am grateful to the Minister for repeating that commitment, as the current system is reminiscent of the infamous Henry VIII Star Chamber court: people are not told the case against them; they are not allowed their own choice of lawyer to defend them; the lawyer does not know the case he has to defend; and, in the end, people are not even provided with the reasons for the decision to subject them to a control order. As we now know from the Belmarsh cases and others, a control order can mean seven years, which, with proper remission taken into account, is equivalent to a 14-year prison sentence, yet not many terrorism offences carry that weight of penalty. We should bear that in mind.
Much has been said about intercept. It is a year since the Chilcot inquiry reported and the Prime Minister has given an undertaking to accept the report in principle, so perhaps the Minister will explain why we have as yet seen no outcomes.
Lord Carlile spoke about the exit strategy last year and this year repeated what he had said, but we have no exit strategy. Our Committee recommended, following on from Lord Carlile, that no control order should be continued beyond two years, save in exceptional circumstances. In many cases, these people are no longer a threat. Realistically, what terrorist organisation is going to keep on its books someone who has been in detention of one form or another and subject to scrutiny for that period?
If the President of America is going to close Guantanamo Bay, surely we should adopt the same approach in respect of control orders. We must have an alternative—a human rights-compliant alternative. That has been the recommendation of my Committee time and again as a means of dealing with those people of whom we have such fears.
If we looked at this issue solely from the point of view of effectiveness against terrorism, it would fail the test. It is no good solving a single problem if that solution creates 100 further problems. A number of hon. Members have made the point that this works to exacerbate radicalisation.
It is worth considering the size of the problem. When Lady Manningham-Buller made her last speech on the matter, she said there were 1,600 radicals in the country; one year later, Jonathan Evans, then head of MI5, said it was more than 2,000—an enormous number and it is growing at 25 per cent. a year. The reason for that is the perceived injustice by the Muslim community of a number of measures—42 days’ detention, 90 days’ detention and these control orders. The simple fact is, as the Liberal spokesman said and as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) reiterated, that this is a Kafkaesque process in which people are given almost no knowledge of the evidence and very little knowledge of the accusation.
The simple fact is that owing to the lack of oversight, injustice is almost certainly common. We know too of at least one instance in which MI5 presented the same evidence to support opposing conclusions in two successive hearings of the Special Immigration Appeals Commission. That was discovered only because the same defence lawyer was representing two different defendants. As a result, both judgments were overturned, and some coruscating comments were made by Lord Justice Newman at the time.
Has my right hon. Friend observed that, according to page 5 of Lord Carlile’s excellent report, the control orders of six individuals were revoked because—this is in brackets—
“the assessment of the necessity of the control order changed”?
Presumably those individuals were no longer deemed a threat. Does my right hon. Friend think that that means that they were reformed terrorists, or that the control orders should not have been issued in the first place?
That, of course, is the risk, and it brings us to the issue of the size of the problem. When this piece of law was put in place, we were told by the then Prime Minister, Tony Blair, that “hundreds” of people would be subject to control orders. And what do we find? There is a maximum of 15 at any one point in time.
What it shows, frankly, is that information given to the House at the time when the control order legislation was passed was simply not true. Presumably the Minister is not trying to tell me that something else has happened to those hundreds of people. They certainly have not been prosecuted or arrested.
The other issue that the Minister batted aside when I put it to him was the number who had escaped. If these people really pose an ever-present threat to the safety of the public, seven escapees—presumably the most dangerous, the most cunning, the most determined to get away—would be a matter of concern. When asked about that, the Minister’s predecessor, the right hon. Member for Harrow, East (Mr. McNulty), said that they were not a significant threat to the country after they had escaped.
Much of this is about resources. Much of it is about the willingness to introduce a surveillance mechanism. We all understand that surveillance is very expensive, because it involves a vast number of people. The trouble is that control orders without it do not work. That is the point about the seven escapees. Control orders with surveillance, however, save no money, so what is the point? There is little point in this legislation other than machismo.
Let me make one simple final point. It is clear from all the arguments that we have had about intercept evidence that an intercept strategy would solve the problem caused by the majority of 15 or so individuals with whom we must deal in any given year. It would reduce that total to a tiny number, and surveillance would solve the remaining problem.
This is an unnecessary piece of law, and a bad piece of law. It does huge damage to the Government’s “prevent strategy”, and I suspect that, if anything, it makes the threat from terrorism worse.
I will be brief, because there is very little time.
We have been over the Prevention of Terrorism Act in the past. We have ritually renewed it every six months. Eventually, people began to realise that there must be some other way of doing things. As a result of post-9/11 syndrome, we passed various pieces of draconian legislation. We passed legislation allowing control orders to be imposed, and the effect has been to damage community relations, to make people less rather than more co-operative with the police and everyone else, and to take away the liberties of citizens of this country. Surely it is time for this House of Parliament to stand up and defend liberties rather than taking them away, and to support the rule of law rather than undermining the decent judicial process that ought to be the tradition of this country.
One and a half hours having elapsed since the commencement of proceedings on the motion, the Deputy Speaker put the Question (Standing Order No. 16(1)).
That the draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2009, which was laid before this House on 3 February, be approved.