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Control Orders: House of Lords Judgment

Volume 711: debated on Tuesday 16 June 2009


Asked By

To ask Her Majesty’s Government what is their reaction to the judgment of the House of Lords on 10 June in Secretary of State for the Home Department v AF on the use of secret evidence in control order hearings.

My Lords, the judgment has only just been received. The Government keep all control orders continually under review and we will consider the impact of this judgment and our options carefully. The Government will continue to take all the steps that we can to manage the threat posed by suspected terrorists.

My Lords, I thank the noble Lord for that Answer. He will know that this is the second time that a major piece of government anti-terrorist legislation has come unstuck. Will he therefore agree that the Government should now phase out all existing control orders as soon as possible and come up with some other means of meeting the terrorist threat in a way that is consistent with the defendant’s right to a fair trial? In particular, the defendant must know, if he is to have a fair trial, the case that he has to meet.

My Lords, I would not accept that this is a major piece of legislation coming unstuck. This is a very serious issue. It is interesting that, in the judicial reviews of past control orders, in every case except one of the 14, the decision to impose the control order was not found to be flawed and the judge agreed in the High Court that the individual was reasonably suspected of involvement. The noble Lord, Lord Carlile, our independent expert on counterterrorism, has confirmed his view that there is a solid intelligence case against all the individuals who are currently subject to a control order. This is a difficult area. Ideally, we would like to take these individuals through the courts properly and put them behind bars, as we have done with almost 200 terrorists since 9/11. Alternatively, if they are foreign nationals, we would like to deport them to their countries, but we can do that only if they are not going to be treated abominably in those countries. That ties our hands, so we must have a way of handling some really dangerous people. There are a small number of them. I have looked at this in great detail, because I was not happy when I came in two years ago. We removed the light-touch control orders and use only the serious ones. If there was an easier and better scheme, I would very much like to use to it. Now, clearly, we must go through each one on a case-by-case basis.

My Lords, the Secretary of State accepted in the proceedings before the House of Lords that control orders could not be imposed unless there were judicial proceedings that were fair to the person against whom the control order was made. Will the noble Lord confirm that that is the position of the Secretary of State? Will he also accept that it is impossible to have a fair hearing if neither the defendant nor his legal representatives know the nature of the case against him, both legally and factually? Will he come forward with proposals to remove control orders altogether and put something in their place?

My Lords, the Secretary of State obviously believes that we should try to apply these things as fairly as possible within the context of UK law, but these are highly complex issues. In the recent judgment, the noble and learned Lord, Lord Hoffmann, said:

“I agree that the judgment in A v United Kingdom requires these appeals to be allowed. I do so with very considerable regret because I think that the decision … was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism”.

If you look at the judgment in detail, you see that five or six of the Law Lords were very concerned about what is happening. These are difficult and intricate legal issues, into which I tread very warily because I do not have the deep legal knowledge that a number of noble Lords have. As I say, it is a very serious issue. We will have to look at each case individually. Over the last few months, I set up a whole team to look at whether there is some other way of doing this. The only other ways of doing it were hugely expensive and I was concerned about whether we would even get the same coverage. It is a serious issue and we will look at it case by case. I think that that is the way to proceed.

My Lords, the Minister has just said that each case will be reviewed. Does this mean that the Government will test each case against the very clear requirement on disclosure that the Law Lords’ ruling has laid down? If the Government find that they are not able to meet this disclosure test, will they replace the control orders regime?

My Lords, we will look at each one individually. It is quite clear that not all the orders will be adversely affected by this judgment. For example, in one case the High Court has held that the test of A and Others, if it were applied, would be met. In another case the High Court found that the control order could be upheld on the facts relied on in open evidence alone. So some of them will stay. As regards the other ones, if they do not pass the test, clearly we will follow the direction and those control orders will have to go. We will have to then put in place something to enable us to ensure the safety of the people on this island, which is our greatest priority. That will be very difficult. This has made life difficult but one of the great joys and strengths of our nation is that we apply the law, follow it and go through this sequence. That does not make things easy at times; it makes them extremely difficult. There are some very nasty people out there who, I am afraid, want to kill lots of us. It is quite difficult keeping control of them at times.

My Lords, I declare an interest as counsel for AF in the proceedings before the Appellate Committee. Will the Government, when deciding on their policy in this very difficult area, reflect on the wise words of the noble and learned Lord, Lord Phillips of Worth Matravers, the senior Law Lord, in paragraph 63 of his speech, that, if the public are to have confidence in the system of control orders, they need to know at least the gist of the allegations against these people and need to know that they have had a fair opportunity to answer the case against them?

My Lords, I am not a lawyer, but I have to say that that is correct. Generally, they should and do know the gist of the case. It is the High Court that determines whether the material that is withheld from individuals is in the public interest or not; it is not the Secretary of State. All the material that we have and rely on is given to the court to inform its decision. We also have a special advocate. We have bent over backwards to try to achieve this. Clearly, we have not achieved it, because we do not ensure that enough of that information is there. Generally, one should see it. Equally, however, it is very important that we protect the sensitive material that, if we gave it away, would tie our hands behind our back. It is very easy to do that. Such material can give away names of people who will be at risk. It can give away techniques that allow us to gain knowledge of these very unpleasant people. We have to be really careful about that.

My Lords, further to the question asked by the noble Lord, Lord Pannick, does my noble friend agree that one of the central tenets of the British system of justice is that justice should not only be done but be seen to be done? Therefore, if we are to hold conviction across as wide a cross-section of the population as possible, which is crucial in security matters, it is essential that we move towards a system in which any action that is taken to control people in this way can be demonstrated in the courts to be essential.

My Lords, I absolutely agree with my noble friend. As I say, this is a very difficult area. We will have to move through it case by case, which is absolutely correct. That is one of the great strengths and joys of this great country of ours. However, I am trying to put across how extremely difficult this is. There is no hard evidence against some of these people, but I can assure your Lordships that, in terms of intelligence, I know that they are not my friends. That is the issue.