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Control Orders

Volume 717: debated on Wednesday 3 February 2010

Question

Asked By

To ask Her Majesty’s Government what plans they have for phasing out control orders in the light of the unanimous decision of nine Lords of Appeal in Ordinary in Secretary of State for the Home Department v AF (No. 3).

My Lords, I thank the Minister for that Answer. The House will recall the unusual circumstances in which we passed the control order legislation five years ago after an all-night sitting. Do the Government have any alternative plan—plan B, as it were—if Parliament decides not to renew the legislation when it comes up for renewal next month? If so, could the Minister let us know what that plan is?

My Lords, this House has gone over the control order issue at length and there have been numerous Questions on it. None of us likes control orders. I did not like them when I came into post and I specifically asked whether there was any way of getting round them. A detailed study into this was done by the Security Service—SO15 OSCT—and control orders were the least worst option. There are a very small number of them—12, according to the last quoted figure and fewer than that now. We use them on a carefully selected basis.

I believe that they are necessary for the security of the nation. We do not like them and we have a lot of safeguards in place. Three High Court judgments have upheld individual control orders since the House of Lords judgment. Mr Justice Wilkie said of one of the cases that there was overwhelming evidence of past involvement in terrorism-related activity and future intentions to be so involved. It would be remiss of our Government not to look after the security of our nation. Control orders are absolutely necessary and I will fight tooth and nail to keep them because there is no easy alternative at the moment.

My Lords, is my noble friend aware of the comments made by the noble Lord, Lord Carlile, in his capacity as the independent reviewer of terrorism legislation, that there is no readily available alternative to control orders? Is he also aware of the interesting document on national security published by the Conservative Party, in which it, too, acknowledge that the best that the party can offer as an alternative is to review the system with a view to reducing reliance on it—which, as I understand it, is the Government’s policy?

My Lords, my noble friend is absolutely right. The noble Lord, Lord Carlile, who is the independent reviewer, stated,

“it is my view and advice that abandoning the control orders system entirely would have a damaging effect on national security”.

He went on to emphasise that he had considered the effects of the court decisions on disclosure and did not agree that the effect was to make control orders impossible.

My noble friend is absolutely right that we constantly review this issue. I am very hard on people, when they try to come up with a control order, to see that it is absolutely necessary. It is interesting that those in the party opposite, who earlier said that they were going to get rid of these things, have, amazingly, slightly changed their view—which is much more sensible, because all of us are interested in the security of our nation.

Nevertheless, the noble and learned Lord, in his supplementary question, asked about the Government’s plan B. I did not hear an answer: do they not have one?

My Lords, all the time we are looking at threats, possible threats and what might happen. It would be foolhardy of me to say on the Floor of the House what we would do. Clearly, we would ensure the safety of the nation. It might cost a huge amount more, and take a great deal more effort, and it might mean we could not be quite so sure of our safety, but that is what we would do.

My Lords, is the Minister happy with the Government’s approach to legislation and to its implementation? The noble Lord, Lord Carlile, has not been uncritical of the implementation and detail of control orders. The approach seems to be to push at the boundaries and wait to see whether the courts knock them back.

My Lords, I would not accept that that is the way we go about it. We look at this all the time: we have very good methods of scrutiny of control orders and we go through many checks to make sure that they are looked at properly. I do not accept that we do it by pushing to the boundary and then waiting for a court to push it back.

My Lords, does the Minister recollect that in the earlier case, the appeal of MB, which came before the Appellate Committee, the majority of the committee, of whom I was one—I declare that as an interest—favoured an approach that would have admitted some flexibility and the application of the concept of reasonableness in the spirit of the common law; but that a subsequent decision of the European Court of Human Rights directed that a rigid rule be adopted, with the consequence that in the AF case the Appellate Committee felt compelled, although some had some reluctance, to decide as it did? Have the Government any thoughts about a way around that impasse?

My Lords, I thank the noble and learned Lord for that interjection. He is absolutely right. The quote from the noble and learned Lord, Lord Hoffmann, was very interesting. He agreed that the judgment of the European Court of Human Rights in A v United Kingdom requires these appeals to be allowed, but stated:

“I do so with very considerable regret, because I think that the decision of the ECHR was wrong and that it may well destroy the system of control orders which is a significant part of this country's defences”.

Have we been able to think of a way around it? The answer is no. I am constantly meeting the control order team, because I do not like the orders. None of us in our party or in this House likes them; but I believe that they are necessary, and that is why they are there. We are constantly looking for some other way of achieving this.

Is it not a fact that the judgments from the court at Strasbourg are not binding on courts in this country—they have to be taken into account, but are not binding—and that the final court of appeal in this country is the Supreme Court? The European Convention on Human Rights cannot, and the 1998 Act did not, prevent this Parliament, if so advised, passing legislation which is incompatible with one of the convention articles, provided that the intention of Parliament is made clear by an appropriate statement of incompatibility from the promoting Minister, in which case the courts will be bound to accept the legislation as it stands. That nettle has not been grasped by the Government.

My Lords, I might get myself into a difficult legal argument on this. I now understand why 80 per cent of the cost involved in control orders is legal costs. It is due to the complexity.