The draft order laid before the House on 1 February be approved.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments and 16th Report from the Joint Committee on Human Rights.

My Lords, the purpose of the order before the House today is to renew Sections 1 to 9 of the Prevention of Terrorism Act 2005, which expire after one year unless renewed by order subject to affirmative resolution in both Houses. The effect of the order will be to maintain the powers set out under the Act until the end of 10 March 2011. This will allow us to continue to use control orders to tackle the threat posed to the public by suspected terrorists whom we can neither prosecute nor deport.

It is important to remember that there have been a number of significant terrorist attacks, and attempted attacks, on our country and across the world in recent years. These have sought to undermine our fundamental rights and values through the indiscriminate murder of innocent people.

I can assure the House that the threat to the United Kingdom from international terrorism remains real and serious—the threat level was again raised to “severe” by the Joint Terrorism Analysis Centre on 22 January. Recent trials and investigations have shown that numerous terrorist networks are continuing to plan and attempt to carry out attacks.

There are no simple solutions to cope with this threat. We need a broad range of responses to reduce the risk of further terrorist attacks. All these responses must ensure public security while protecting our values and civil liberties. These values underpin all our work, as is already clearly articulated in our counterterrorism strategy, CONTEST.

It bears repeating that prosecution continues to be, and will always be, our preferred approach when dealing with suspected terrorists. Terrorists are criminals who attack the values that we all share. Criminal convictions demonstrate this in the clearest fashion. There have been 217 convictions for terrorism-related offences since 11 September 2001, with 29 further defendants awaiting trial at 31 March 2009. These figures demonstrate the considerable success that the police and intelligence agencies have had in disrupting terrorist plots and the success that the Crown Prosecution Service has had in prosecuting these individuals.

We remain committed to enhancing further our ability to bring forward prosecutions. We introduced new offences relating to terrorism in 2006 and 2008 to ensure that as much terrorism-related activity is prosecutable as possible. We have made provision for new mechanisms to facilitate prosecution, such as post-charge questioning.

As set out in the Statement to the House on 10 December by my right honourable friend the Home Secretary, the Government are undertaking further work to establish whether the problems identified by the programme of work recommended by the Privy Council Review for the introduction of intercept as evidence are capable of being resolved. We will report back by Easter.

I remind the House that the original Privy Council Review report noted the review by independent senior criminal counsel of nine current or former control order cases. That concluded that the introduction of intercept as evidence would not have enabled a prosecution to be brought in any of those cases.

Where we cannot prosecute a suspected terrorist, and the individual is a foreign national, we seek to deport him. In this regard, deportation with assurances agreements which allow us to assess more precisely whether a particular removal is in conformity with our international human rights obligations, and to demonstrate it at appeal, remains a crucial tool in our counterterrorism efforts.

Notwithstanding all our efforts, and despite continuing to improve our ability to prosecute or deport, we are unfortunately left with a small group of suspected terrorists whom we cannot prosecute or deport. Control orders are intended to protect the public from the risk posed by such individuals irrespective of nationality, ethnicity or religion. The national security case for control orders therefore remains as strong as ever.

For the past five years, control orders have proved a valuable and targeted tool in our fight against terrorism; effectively a last resort. They are preventive measures. Each order places a tailored set of obligations on an individual to help prevent or restrict him from engaging in terrorism-related activity. They are not imposed arbitrarily, nor are they imposed widely—there are currently only 11 control orders in force, and only 46 individuals have ever been subject to one.

Noble Lords will be aware that the key development relating to control orders during the past year was the House of Lords 2009 judgment in AF & Others. In the light of the Strasbourg judgment in A & Others, the Law Lords concluded, reluctantly in a number of cases, that in order for control order proceedings to be compatible with Article 6, the controlled person must be given sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. I should make it clear that they reached this conclusion in relation to the stringent control orders that were the subject of the particular appeal before them.

It is clear that this judgment puts the Government in a difficult position. We have to balance the importance of protecting our public from the risk of terrorism posed by the individual against the risk of disclosing sensitive material which would harm national security. Some suggested that the judgment meant that the regime was no longer sustainable. Our view was that the control order regime remained viable, although we acknowledged the importance of keeping the situation under review as the courts applied the judgment to particular cases.

So far, only two control orders have been revoked on Article 6 grounds without being replaced by new orders. Moreover, the High Court has upheld four control orders since the House of Lords judgment, following proceedings that were compliant with the Article 6 test laid down in AF & Others. The Government therefore remain of the view that the regime remains viable. The noble Lord, Lord Carlile of Berriew, reaches the same conclusion in his most recent independent report on control orders.

The judgment should also finally put to bed the argument of some noble Lords that control orders are in some way an affront to human rights. That is clearly not the case. The protection of human rights is a key principle in our all our counterterrorism work, including the use of control orders. It has inaccurately been claimed that the judge in control order cases considers only procedure and not the merits of the case. In fact, a judge must agree that there is reasonable suspicion of involvement in terrorism-related activity, and that the order and its constituent obligations are necessary. The judge also specifically ensures that the order and the court proceedings in relation to it are compliant with the European Convention on Human Rights. We remain firmly of the view that the legislation and the order before us today are fully compliant with the European Convention.

We consider the community impact of a control order both at the point of its imposition and during its lifespan. Alongside this is a wider programme of ongoing engagement with key opinion formers and community leaders which seeks to address, among other concerns, the impact of counterterrorism legislation, including the use of control orders.

Apart from viability and fairness, the other major argument that people put forward against the use of control orders is that they do not work. The Government do not agree with this assertion. Of course we accept that control orders cannot entirely eliminate the risk of an individual’s involvement in terrorism-related activity in every case. In most cases, however, control orders have restricted and disrupted that activity and, in some cases, they have successfully prevented involvement in terrorism-related activity.

The reports of the noble Lord, Lord Carlile, support this conclusion. His 2009 report made clear his view that control orders were “largely effective”. His 2010 report examines individual cases in greater detail. He concludes, for example, that three orders have,

“substantially reduced the present danger”,

posed by those individuals and, in another case, that the control order is “an effective intervention”. The recent report concluded that the legislation should be amended as soon as possible to provide the police with a power to search controlled individuals. Noble Lords will be aware that we tabled such an amendment to the 2005 Act during Commons Committee consideration of the Crime and Security Bill, which is currently before Parliament.

I have made a couple of references to the latest annual report on control orders by the noble Lord, Lord Carlile. I draw noble Lords’ attention to his conclusion that,

“it is my view and advice that abandoning the control orders system entirely would have a damaging effect on national security. There is no better means of dealing with the serious and continuing risk posed by some individuals”.

This view is shared by the two statutory consultees—the Intelligence Services Commissioner and the director-general of the Security Service—who support the proposal to renew the legislation for a further year. I place on record the Government’s thanks to the noble Lord, Lord Carlile, for his fifth annual report, which will no doubt inform today’s debate. We will of course reply to that report formally in due course.

We still face a serious threat from terrorism. We need to protect the public while ensuring that our fundamental rights and values are safeguarded. Control orders are by no means a complete or, indeed, perfect solution to the threat that we face, but they are an important, necessary and, I believe, proportionate part of our overall approach. I have absolutely no doubt that the risk to the public would increase were the Act not to be renewed. No Government could allow that to happen. I commend the order to the House.

Amendment to the Motion

Leave out from “that” to the end and insert “this House declines to approve the draft order laid before the House on 1 February”.

My Lords, I thank the Minister for introducing the order. The temporary arrangements of 2005 lead us to find ourselves in what has become an annual ritual. I acknowledge that there are now some differences. We now have the concept of lighter-touch control orders, although they may not feel lighter-touch to those affected. I shall return to those. We also have the admirable report from the Joint Committee on Human Rights, which concludes that the current control order regime is “no longer sustainable”. One thing that has not changed is the opposition of these Benches to control orders. I had expected to find that the Government’s justification for control orders would in part be that it was too dangerous to disclose evidence even to the special advocates. However, in the debate in the Commons on Monday, the Minister talked of not having sufficient evidence. He said:

“If there were sufficient evidence, we would prosecute. On occasion, sadly, we hold information but cannot obtain sufficient evidence to prosecute, although we know that the individuals concerned pose a potential threat. We have had to make a judgment, which the House may or may not support tonight, on whether that threat remains real and serious, and whether this power should be introduced”.—[Official Report, Commons, 1/3/10; col. 723.]

Making that judgment is the very thing that we cannot do.

I have said before in this Chamber how difficult it is for those of us who are not part of the Executive to respond when essentially the Executive’s message is, “If you knew what we know”. Therefore, the Executive need to be very convincing indeed when they tell Parliament that they know rather than have evidence and when they ask Parliament to support a regime described by the Eminent Jurists Panel on terrorism, counterterrorism and human rights as potentially giving rise over the longer term to “a parallel legal system” and undermining the rule of law.

Will the Minister explain the extent to which Ministers—it may be only the Home Secretary—personally consider the detail of each case? Of course they must take advice from the agencies, but do they themselves assess the facts? Have the Government ever considered sharing the basis for decisions with the Opposition on a Privy Council basis? I make it quite clear that I have no doubt at all about the Minister’s integrity. He has himself made it clear that he very much dislikes control orders and, in his words, is very hard on people when they try to come up with one.

There are those who wish to instigate their own full review of the regime. It would be helpful to hear from the Conservatives whether, if they were to find themselves in office later this year, such a review would start immediately and how long they anticipate it would take. As I understand it, they argue that they need to see the detail of the cases. I would ask whether it was not better to consider the principle before being carried along by the detail.

Those who support control orders rely on the reports of the independent reviewer. Of course I do not suggest that he is not reliable, but his statutory role is to review the operation of Act and not, or not directly, the underlying policy. His role is also—perhaps this is the same point—essentially backward-looking. Interviewed following his most recent report, the noble Lord, Lord Carlile, acknowledged that, in concluding that the system remained necessary for a small number of cases, he had to hold his nose.

The numbers are indeed small but the impact on controlees, their families and communities is great. The JCHR reports its extreme concern that,

“the degree of control over the minutiae of controlees’ daily lives, together with the length of time spent living under such restrictions, and their apparently indefinite duration, have combined to exact a heavy price on mental health”.

It comments on the “collateral impact” of the effect on female partners and children, including on their basic economic and social rights as well as their right to family life. It is very depressing to read that children cannot access the internet from home. We know how important technology is in today’s education and we can imagine how other pupils may treat them. This is one of the conditions that may be imposed and seems to have been imposed frequently, if not invariably. Moreover, the legal process is so protracted that, for instance, when a controlee requested the variation of a condition to enable him to attend a college course, the course was finished before his modification request was resolved.

I mentioned lighter-touch orders. It seems that relocation conditions are increasingly being used to require a controlled person to move. That has been described as a form of internal exile. British citizens who have grown up in a particular community have to uproot themselves and their families—their wives from jobs and their children from schools—and move to a new location. The JCHR reports evidence that this is having a disproportionate impact on the Muslim community, which the Government say that they are seeking to reassure.

Relocation conditions puzzle me. The Minister in the Commons said that sometimes an individual is a threat because of his geographical location. He said:

“If we move them from that geographical location, the threat they pose diminishes”.—[Official Report, Commons, 1/3/10; col. 727.]

Surely someone who is such a threat as to justify a control order would have the wit to overcome the hurdle of being moved from, say, Leeds to Chipping Campden.

Our concerns are not just about the conditions but about the basic fairness of control orders. The special advocates have,

“profound—and thus far insuperable—difficulties”,

in accessing independent expertise that would enable them to challenge the Security Service’s assessments. Also, late disclosure or closed material seriously hampers them. That is a practical issue but, according to the JCHR, it creates the risk of serious miscarriages of justice.

A special advocate cannot communicate with the controlled person or his legal representatives after he has received closed material. Clearly, this seriously affects the advocate’s ability to represent the controlee’s interests.

The special advocates have asked for the rule to be relaxed to allow communication on matters of pure legal strategy and procedural administration, and to apply to the court for permission to ask questions of the controlee without giving notice to the Home Secretary. Those seem relatively mild requests. It is no wonder that they were “bemused” that the independent reviewer's sympathy led him to suggest improved training and closer co-operation, with no rule changes, when, as he himself said, the problem is “hardwired” into the rules.

My Lords, I support the amendment of the noble Baroness, Lady Hamwee. In doing so, I should declare an interest since I was one of those who opposed the very idea of control orders when they were first introduced in 2005. I did so for two main reasons. First, I did not like the idea of the Home Secretary confining individuals on the advice of the Security Service and imposing on them restrictions that, at the severe end, are very severe, without the Home Secretary being satisfied on at least the civil standard of proof—the balance of probabilities—that they really are terrorists. Reasonable suspicion on the part of the Home Secretary is, in my view, much too low a threshold.

No doubt it will be said—it always is said, and has been said—that the imposition of control orders is subject to the supervision of the court and that that makes all the difference. I do not agree. It is true that the Home Secretary must obtain the consent or permission of the courts before imposing a control order if there is time to do so. It is also true that the decision of the Home Secretary can be quashed at a later stage if it is obviously flawed. That is the test applied in judicial review. However, the decision itself is still the decision of the Home Secretary and not of the court; still less is it the decision of the jury.

The powers given to the Home Secretary to restrict the freedom of individuals under the 2005 Act are very great. We are used to such powers being given to the Executive in time of war. It happened in 1939 and again at the beginning of the first Iraq war in 1991. It was my job at that time to visit Iraqi nationals detained in Pentonville on the advice of the security services. Having heard their stories, I was required to advise the Home Secretary of the day whether there were any grounds for detaining them. Many were thereupon released, so I have at least some experience of what these things are like at the receiving end.

However, that was in wartime. The powers given to the Home Secretary under the 2005 Act have never, as far as I know, been given to the Executive in time of peace. They do not exist in France or Italy, as I know to my certain knowledge. Nor, as far as I know, do they exist in Spain, Germany, Canada or the United States, if one excludes Guantanamo Bay—a point made forcefully by Sir Kenneth Macdonald in his evidence to the Home Affairs Committee in the House of Commons. If all those countries can deal with the terrorist threat—and they have all suffered the terrorist scourge as we have—without resort to control orders, why are we the exception? Putting it the other way round: if control orders or anything like them are not necessary there, why are they said to be necessary here?

My second objection to the principle of control orders lies in the field of procedural justice. An individual has a right to be heard in his own defence. Everyone has that right however dangerous they may seem to be. There is no problem where the evidence can be produced at the hearing. The difficulty arises when the evidence cannot be disclosed—the so-called closed material. What happens then? Under paragraph 7 of the schedule to the 2005 Act, the Attorney-General can appoint a special advocate to represent the suspect’s interest. However, the special advocate is not like an ordinary barrister. Once he has seen the closed material, he can have no further communication with the suspect. That is the critical point.

I was not the only person to doubt the justice of that arrangement. It would mean that, in many cases where the only evidence against the suspect was in the closed material, he would have no idea of the case against him. It would mean that, as regards his barrister, he would be shooting at a moving target in the dark. Others took that view as well as myself. In the debate in March 2004, on the renewal of the Anti-terrorism, Crime and Security Act 2001, the noble Baroness, Lady Hayman, said that she had made people laugh when she said that the special advocate procedure was like Kafka being played by the rules of cricket. She went on to say:

“That really was the sense you got out of the process; that an enormous lot was being done to try and ensure a scrupulousness in administering something that was fundamentally flawed—fundamentally flawed because those accused did not know what the accusation was and they or their lawyers did not have the right to see the evidence against them”.—[Official Report, 11/3/04; col. 1356.]

That was a very wise and prescient observation, because that was the very point decided nine years later by nine Law Lords in the AF case. If the suspect does not know the gist of the case against him, he cannot have had a fair hearing. It was as simple as that.

That brings me to the facts of that case, which are important and should be much more widely known than they are. AF was one of three appellants, AE, AF and AN. I take AF’s case as being typical. He was served with a control order on 2 June 2006, which imposed an 18-hour curfew together with very severe restrictions. On 1 August, it was held by the Court of Appeal that the 18-hour curfew had the effect of depriving him of his liberty, which the Secretary of State of course had no power to do without derogation. So the Home Secretary appealed to the House of Lords and five Law Lords upheld the Court of Appeal. AF’s control order was revoked, but it was replaced by other control orders with varying curfew hours of 12 to 16 hours. His last curfew order was imposed this time last year, but it was revoked by the Home Secretary on 27 August 2009 as a result of the decision in the AF case. Thus AF had been subject to successive control orders for a continuous period of three years and 15 days, of which 184 days were spent in prison because of minor breaches of the terms of his control order.

That brings me to the final chapter in the case of AF, which was written by Mr Justice Silber. In his judgment on 18 January, he held that the original control order of 2 June 2006 and all subsequent control orders must be quashed, because AF had never had a fair hearing. He was never told of the case he had to meet—the very point that the noble Baroness, Lady Hayman, foresaw back in 2004. The Home Secretary described Mr Justice Silber’s decision as disappointing—a word that he has used on several occasions to describe recent decisions of the courts. The effect of Mr Justice Silber’s decision is that AF is now free to claim compensation. He has been told that, even if he succeeds, the compensation is likely to be modest. Even so, the Home Secretary has decided, true to form, to appeal to the Court of Appeal; no doubt, if he loses, he will appeal to the Supreme Court, as it now is. I shall not predict the outcome; instead, I shall simply comment on what, with a nice understatement, the noble Lord, Lord Carlile, calls the considerable court activity in 2009. There have been 15 separate hearings at High Court level or above. In 2008, it was rather more; there were 18 separate hearings at High Court level and above. That explains the figures that the noble Baroness has given, with £8 million out of £10 million having been spent on legal fees, which I work out at about £360,000 per individual for the 30 or so individuals during the years in question.

My Lords, we are considering an order which goes to the fundamentals of a free society which seeks to live by the rule of law. I doubt that there is any Member of this House for whom the existence of control orders or the fact that we have to have them is anything but a matter of regret.

The issue is whether they are still judged to be effective and necessary in practice, even if highly undesirable in principle. We have heard very strong sentiments expressed to the effect that control orders are not necessary or effective. I must say that I wish I could wholly share that confidence. Nevertheless, let me say straightaway that I share the aim of other noble Lords, including those who have spoken—the noble and learned Lord, Lord Lloyd, and the noble Baroness, Lady Hamwee—of finding a way forward which would permit us to dispense with control orders. The question is how we do that. However, their removal must not at the same time aggravate the terrorist threat or undermine the security of the British people.

Several issues are involved: the security situation, the possibility of reducing or eliminating the need for control orders by taking other measures, re-examining the prospects for successful prosecution and reforming the system itself. All of these aspects have been mentioned by previous speakers and I wish to refer to them briefly. I begin with the security situation.

The noble and learned Lord, Lord Lloyd, said that we are not at war. Of course, he is right; we are not at war in a traditional sense. We do, however, have a severe security threat which I take seriously. But part of our problem is that the Government have failed to update this House on the current general security situation, even though, as the Minister himself said, the terrorist threat was raised again to “severe” in January. But we have not had a proper report to Parliament to either explain or justify that. In June last year, I called on the Government to issue a report on the current threat and security situation in time for discussion on renewed orders for counterterrorism measures. It is not good enough to expect the renewal on the basis of keeping people in the dark and preventing us giving informed consent.

I am well aware of the limits of what may be said in public, but the Government make no attempt to get anywhere near those limits. That is very regrettable, because we ought to be having a discussion against a much more informed general background, and there is also the question of the threat posed by the individual controlees. It is unlikely that all controlees will be threats for all time; indeed, some of the orders have been lifted. The noble Lord, Lord Carlile, has reported on individuals currently subject to control orders, but his function, important as it is, does not relieve the Government of reporting on their own account. It is most unsatisfactory that they do not do that.

However, having said all that, precisely because, in the view of the statutory reviewer, the control order regime remains necessary in a limited number of cases and is not capable of being replaced by other measures currently available, I do not feel able to support the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Lloyd, in their amendments to the Motion, and I am obliged to take seriously the judgment of an informed person—in other words, the noble Lord, Lord Carlile. These Benches will therefore abstain on the amendments before the House.

It follows from what I have said that on these Benches we want to see at least significant reform of the arrangements surrounding control orders and, at best, the replacement of the regime itself. If we are elected to office that will be an early aim. The noble Baroness, Lady Hamwee, asked if we were to be elected and conduct such a review, how long it would take and with what aim in mind. I can assure her that it will be with the aim, if we possibly can, of eliminating the control order regime. It will be an early piece of work, we will not delay on the matter, and it will be seriously conducted. We will aim to come back to the House with what we hope will be a justified conclusion at an early date.

It has been well said that there is no silver bullet—no single thing that would enable us to do away with this regime. But there is a range of measures that should be investigated with a view to making control orders unnecessary. I shall list them briefly, because they are well known. First, there is the possibility of deportations. We know that they are difficult but they should be pursued with vigour. There is the question of using intercept material as evidence. We have been cautioned as to its likely limited value. But that is not the same as having no value, and we know that non-British-sourced intercept evidence has been useful in securing prosecutions. Given that the public interest in securing successful prosecutions is very great, the Government are right to revisit the conditions laid down in the Chilcot report. I very much hope that the further work being done will lead to an outcome which enables that material to be used in court. I know that a report has been promised before the Easter Recess. If it is necessary to do more work in order to get the right outcome, I would much prefer that to being told that publishing a report by Easter is not possible.

I also have some question marks on the way that decisions are currently made about whether or not to prosecute individuals in control order cases. This has a bearing on whether control orders remain in place. These decisions are taken by a chief officer of police, and the CPS has only an advisory role to the extent that the police consider it appropriate to consult. The noble Lord, Lord Carlile, has criticised this—indeed he might—as well as the lack of evidence and reasons given for discounting prosecution or discontinuing investigations, as contained in letters sent by the police when they report to the Home Secretary on what they have done. This year, the noble Lord, Lord Carlile, said in his report that the quality of the letters “continued to improve”. When I was at school, that was another way of saying, “Could do better”.

I am not happy that the last word lies with those whose priority will be security. It is right that they should be involved, but with the much heftier weight of setting another public interest in the balance alongside this—the rule of law. The Director of Public Prosecutions has said that there should be,

“a presumption in favour of prosecution”.

I agree.

All this is more relevant given the raft of new terrorist offences that the Government have created, as mentioned by the Minister. With all these new offences, can we not get more prosecutions? It would be helpful for the Minister to say whether the individuals presently subjected to control orders could be prosecuted in the light of these extensions. I will cite the report of the statutory reviewer, the noble Lord, Lord Carlisle. He referred to the activities of, for example, control orders 11 and 12. These individuals have been trained abroad in terrorist activity, have been involved in considerable terrorist planning and facilitation in the UK, and continue to attempt to remain active despite the control orders. Another two persons, CO4 and CO5, are associated with extremist groups. Their activities are continuing, according to the statutory reviewer. Do the activities not now enable, and indeed warrant, prosecution? Has there been any review of this possibility; and if so, with what outcome? I will ask the reverse question: if there has been no review, why not?

In addition to those steps, which I hope would lead us down the road of being able to secure more prosecutions, others have suggested—this has been touched on by other speakers—that control orders could be replaced with surveillance. It has been said, and I am prepared to believe it, that surveillance is very expensive. However, this should be set against other costs, including ones that have been mentioned by the noble and learned Lord, Lord Lloyd, who talked about the costs of going to appeal all the time. Have the Government made a comparison of relative costs when everything is taken into account? If we are seriously to try to find alternatives to control orders, we must look at the overall cost of where we are now and compare it with going down another road, which may be that of surveillance.

The noble Lord, Lord Carlisle, has come up with a different recommendation in relation to certain controlees. He says:

“Control orders are … no longer suitable for cases where the main objective is to prevent travel abroad. In such cases, after further legislation, there should be available a Travel Restriction Order, with a limited range of obligations”.

Will the Minister say whether the Government agree with this, and whether legislation to this effect will be introduced? This would be less onerous, and the suggestion has come from the statutory reviewer. I am not in a position to assert that measures of the kind that I have outlined will allow us to remove every control order; but they would permit the Government to meet their obligation to reduce reliance on the system.

That brings me to the last set of issues that I will tackle. If the control order regime is to continue even in limited numbers, it is clear that it cannot be on the basis on which it is now being implemented. The Joint Committee on Human Rights has said that the system,

“cannot be operated fairly without fundamental reforms which have so far been resisted”.

Reform of the system need not await the advent of a new Government: it is something that the Government are already charged by the courts with doing, and which they appear to be doing minimally and reluctantly. I say that reluctantly, but they are acting minimally and reluctantly.

The judgment of the Law Lords in the case of AF required the individual subject to a control order to be given,

“sufficient information about the allegations against him to enable him to give effective instructions”

to counsel. In other words, there was an irreducible minimum that had to be disclosed. The question is—and I hope that the Minister will be willing to go into this—how the Government have interpreted and implemented this judgment. This is key to whether there is a serious attempt to reduce the onerous nature of control orders.

In recent evidence to the Joint Committee on Human Rights, no lesser persons than the special advocates said that the Home Office took a minimalist view of the requirements imposed by the judgment. It is interesting that this should come from that source. They took the view that it was primarily up to them, and not the Secretary of State, to make the running when reviewing the evidence base and making proposals for disclosure. One special advocate went so far as to say that this behaviour was not in keeping with the spirit of the judgment. It would be helpful to have the Minister’s comments on this. The Joint Committee on Human Rights shares this view and concluded in a recent report that,

“the impact of the … decision”—

the decision of the Law Lords—

“on improving fairness in practice may have been limited by the Government’s passive and minimalist approach to compliance”.

The Government say that, following the judgment, they carried out a review of all the control order cases to see whether further disclosure was or would be required, and whether it was possible to make the disclosure. The Home Office’s post-legislative assessment refers to the Secretary of State having made “sufficient disclosure”. Will the Minister say how “sufficient disclosure” is defined?

Apart from the internal review of control order cases, will the Minister say whether the outcomes have in all cases been tested in court? Perhaps he will also clarify—it may be helpful to say that he can do this in writing—how the Government have interpreted the judgment, and how they have gone about implementing it. Obviously, that is a detailed matter.

Closely related to the point about disclosure is the context of the special advocate system. There is a prohibition on the ability of special advocates—this was mentioned by the noble and learned Lord, Lord Lloyd—once they have seen closed material, to communicate it to the defendant or to open representatives, at least without the Government knowing what has been said between them. One has therefore to ask: can an individual effectively instruct his legal team? Will the Minister also comment on complaints made by the special advocates about the late disclosure to them of documents? Even within the limits of the system, this is surely unacceptable. Will the Government be willing to review how the special advocate system operates? A number of other speakers also feel that it is unsatisfactory.

As I mentioned, it is well known that the Conservative Party wants to review the consolidation of all terrorism legislation, and will do so if it comes to office. The control order system will form a significant part of that review, and we will look at the various areas that I have covered. It will be a task. We cannot proceed only from the principle, with which we agree, that this is obnoxious: we also have to look at the facts of the situation. However, our aim will be to reduce the reliance on control orders and, consistent with the security situation, to replace them.

Were we to conclude that such a system were still needed, as the noble Lord, Lord Carlile, put it,

“for a small number of cases where robust information is available to the fact that the suspected individual presents a considerable risk to national security, but and conventional prosecution is not realistic”,

we still believe that the system would need reform. We are not content with it, even if it needs to continue.

So today we on these Benches will abstain, but I make it clear that the Government have left the House in an unsatisfactory position. They have not done enough to introduce other measures that would allow them to replace control orders, or greatly to reduce their scope. They have not reformed the system to make it consistent with the rule of law. At the same time, the Government have not reported on the security situation and the risk posed by the individuals in question, thus not allowing us to judge whether the control orders can be removed consistent with the security situation and the duty of Government to protect the public. In the future, we believe that the Government must make a good deal more effort to enable the House to make validly based decisions.

My Lords, I should declare an interest as a former chairman of Justice, an organisation which has provided briefing in support of these amendments. I was on the Front Bench of the Liberal Democrat party in 2005 when we debated what was then the Prevention of Terrorism Bill. Five years later, I want to add a few words from the Back Bench. In 2005, my party was willing to support control orders in principle, but on conditions which were not in fact satisfied and never have been. The two most important of those conditions were, first, that control orders should be made by judges and not by the Home Secretary; and, secondly, that the standard of proof for control orders should be proof of involvement in terrorist activities on the balance of probabilities, and not merely on the basis of reasonable grounds for suspicion. Neither condition was accepted by the Government, but I believe that both should have been because they would have much improved the Bill. It is plainly wrong, for example, that control orders can be made against a person whose activities do not satisfy the test of the balance of probabilities.

As time has gone on, the defects of control orders have become more and more obvious. The decision in the AF case has ruled that control orders are in breach of the right to a fair trial if the subject is not told the substance of the case against him. This will and does make control orders a patchwork, where sometimes they are properly made and sometimes not, whatever the factual basis behind them. There is also little, if any, reason to believe that control orders have been effective in preventing or restricting terrorist activities. By contrast, of course, there is a risk that control orders may increase support for terrorists from terrorist groups or their allies.

I believe that the line we took in 2005, saying that we approved in principle, is no longer viable. We should now oppose the continuance of control orders altogether. There is one issue which has been largely, or in fact I think totally, ignored in the debate so far, and that is that the 2005 Act divided control orders into two classes: non-derogating control orders, which are what we have, and derogating control orders, which so far we have not had. A derogating control order is an order made after the Government have exercised their power to derogate from the European Convention on Human Rights, as provided for by Article 15 of the convention. The circumstances in which that power can be exercised are very limited, and no such order has been made. But the exercise of the right to derogation, if it was exercised, would give power to override the right to liberty under Article 5. It can be said on the one hand that something of that kind could be useful in an emergency, but on the other its existence is a matter for concern. In fact, in the case of serious emergencies, the Prevention of Terrorism Act is unnecessary because a similar action could be taken under the Civil Contingencies Act 2004.

The Joint Committee on Human Rights concluded in its recent report that:

“We have reached the clear view that the system of control orders is no longer sustainable”.

I respectfully agree. I will support my noble friend’s amendment, and if it is defeated, I will support the amendment tabled by the noble and learned Lord, Lord Lloyd.

My Lords, for my recent birthday, I was given by a very clever brother-in-law of mine a book by the noble and learned Lord, Lord Bingham. In it he talks about the rule of law and mentions the Court of Star Chamber, and what I think were called the prerogative courts. This system of control orders reminds me irresistibly of the methods used by both Henry VIII and Charles I, which one would think by now, thank goodness, have mostly been consigned to history.

It is interesting to note that when Charles Clarke introduced the Bill in February 2005, he said it was for,

“those dangerous individuals who we cannot prosecute or deport, but whom we cannot allow to go on their way unchecked because of the seriousness of the risk that they pose to everybody else in this country”.

The noble Lord, Lord West, has repeated that statement today when asking for the order to be renewed. How does it mesh with the fact that when two of the gentlemen under control orders absconded, a junior Home Office Minister said that he,

“did not believe that the public was at risk from the escaped men”?

Either they are dangerous or they are not dangerous. It appears that they were dangerous before they escaped, but they were not dangerous after they escaped. The noble Lord, Lord Carlile, agreed that the disappearances,

“present little direct risk to public safety in the UK at the present time”.

We cannot lock up people who represent no danger, or rather if they only represent a danger when they are locked up and not when they have escaped.

I turn now to what the House of Lords said in the AF case, and I remind your Lordships that nine judges were sitting. The noble and learned Lord, Lord Phillips, said recently in the Supreme Court that:

“A trial procedure could never be considered fair if a party to it is kept in ignorance of the case against him”.

The nine Law Lords held unanimously that the Government’s failure to disclose sufficient details of their case against a person subject to control orders breached their right to a fair trial under Article 6 of the ECHR. They also said that it was against common law and the European Convention on Human Rights.

We should not be behaving like this. It is a disgrace, as the country that invented the rule of law—that invented Magna Carta. Let us remember that Magna Carta was not new law; it is what they persuaded the King to say was the ancient law of England. That is what I find so moving about this country: that we go in for the rule of law. Unfortunately, for the past 13 years or so, there have been some rather shoddy little bits of legislation—not only this one, but others—which have taken away from that great standard.

The noble and learned Lord, Lord Hope of Craighead, the deputy president, said:

“The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him”.

I turn to the JCHR report; I have the privilege to be on the committee. The report was solidly unanimous in its acceptance. We were all shocked by some of the witness statements that we heard. I will start with where we considered what the noble and learned Lord, Lord Lloyd, talked about, which can best be described as “internal exile”. I think that it was the noble Baroness, Lady Kennedy, who used that expression when representing someone, and did so quite deliberately. That is what Tsar Nicolas I did to the Decembrists: they were sent to Siberia for 30 years. I accept that if you are sent from Bradford to Chipping Sodbury, Chipping Sodbury is not exactly a salt mine to the north of the Arctic Circle, but it is the same principle, and a principle that is abhorrent to any of us who care about the liberties of the subject, as I do. The damage to children and wives and the unfairness of the whole principle has been referred to.

I turn to special advocates. The rules have been changed a little, but special advocates continue to have no access in practice to evidence or expertise that will enable challenge to the expert assessment of the security services. Someone cannot challenge the evidence that is against them properly and, above all, the special advocates have no means of gainsaying the Government’s assessment that disclosure would cause harm to the public interest. Late disclosure also means that they cannot address the case properly. I think that it was said that someone applied for release to attend a course, but by the time that the okay came through, the course had finished.

It gets worse and worse. We state in the report:

“By seriously hampering special advocates in their performance of the role they are intended to perform, it creates the risk of serious miscarriages of justice. The inability of special advocates to communicate with the controlee after seeing the closed material, identified as a source of unfairness by the Constitutional Affairs Committee in 2005, remains unchanged, notwithstanding the clear evidence that it seriously affects the special advocates' ability”.

The committee considered whether the whole order regime could be made to operate in a way compatible. We said that we had maintained an open mind until now, but that:

“Our assessment now, in the light of five years' experience of the operation of the system, is that the current regime is not capable of ensuring the substantial measure of procedural justice that is required. In short, it cannot be operated fairly without fundamental reforms which have so far been resisted”.

I could go on citing chunks of the report and trying to précis it, but I think that most of your Lordships have read it. It is an excellent report; it is one that we all felt strongly about; and it concludes by stating:

“For a combination of these reasons, together with serious reservations about the practical value of control orders in disrupting terrorism compared to other means of achieving the same end, we have reached the clear view that the system of control orders is no longer sustainable”.

The cash has been talked about—the cost of lawyers. To end on a marginally flippant note, I would much rather that the cash went to Plod than to my learned friends, and that there was surveillance rather than keeping lawyers in good claret or villas in the south of France. If there is a vote, I will disobey my Front Bench and vote with the noble Baroness, Lady Hamwee.

My Lords, I declare an interest as a member of the Appellate Committee that heard the case at the end of 2004 of those who were subject to indefinite detention in Belmarsh. The conclusion was that the Act—I think it was the 2001 Act—that provided for that indefinite detention was unlawful in that it was contrary to the guarantees given by Article 5 of the convention on the right to liberty, unless that had been detracted from by an appropriate court process, which had not been the case. That decision led to the 2005 Act, under which the control order regime was put in place as a substitute for the Belmarsh indefinite detention regime. That came under challenge and led eventually to the decision of the Appellate Committee in AF. I again declare an interest as a member of that committee as well.

The Belmarsh case had been concerned with Article 5 on deprivation of liberty; the AF case was concerned with Article 6 on absence of a fair trial. Those who had been subjected to the control orders, who had appealed, had had their rights and obligations in the society in which they lived seriously prejudiced; that was the purpose of the control orders. That had been done, as the Appellate Committee found, without there having been a fair trial because it had not been possible for the lawyers representing the controlees to be informed of the gist of the case against their clients. As they could not be informed of the gist of the case against their clients, they could not resist the thrust of the allegations made against them. How could that be a fair trial? The answer was that it could not, and that was the decision.

That remains the position in relation to control orders. Unless the gist of the case against the person who is sought to be or has been made subject to the control order can be disclosed, he cannot be given a fair trial because he cannot be given a proper opportunity of showing that the case against him is false or unsound. The balance of probabilities, to which the noble Lord, Lord Goodhart, referred, could not be satisfied and reasonable suspicion should not be enough.

The legal basis for legislating inconsistently with the convention is made quite clear by the Human Rights Act 1998. It is open to Parliament to legislate inconsistently with the convention; Parliament may do that. However, the courts are instructed by the Act to try, so far as is possible, to read down legislation which appears to be inconsistent with convention rights so as to render it consistent. If the courts can do that, they will do that. They did it in the case of MB when the control order legislation was read down, as your Lordships will remember. If that cannot be done, the legislation—inconsistent though it be with convention rights—is valid and effective and must be, and will be, implemented by the courts. Parliament can make clear its intention that the restrictions, whatever they may be, made possible by the legislation are intended to be effective notwithstanding that they may be inconsistent with convention rights. If Parliament makes that clear, the courts must accept it and apply the legislation.

However, a Government who introduce legislation of that character and obtain its passage through Parliament are in breach of their obligations under the convention to abide by the convention. The convention provides a let-out in Article 15, which states that in a time of national emergency—I cannot quote the exact words, but this is the gist of it—the state in question may take such steps as are necessary to deal with the national emergency. That argument was run in the Belmarsh case. It did not succeed because the Appellate Committee was not satisfied that the indefinite detention which was provided for by the relevant Act was necessary; alternatives could have been, but had not been, considered and tried. But there it is: that is the convention outlet.

My Lords, first, I thank all noble Lords for their contributions to this debate. The noble Baroness, Lady Hamwee, was absolutely right: when I came into post some two and a half years ago I did not like control orders at all, for some of the reasons that noble Lords have given. I was very concerned about them. I wanted to be absolutely sure that they were needed because they were not an attractive option to me. I sent the Security Service, SO15 and the Office for Security and Counter-Terrorism away to look at this in great detail to make me believe that they were right. I thought that they would not be able to prove it. They came back to me, and it took them some months. It was quite clear at the end of that that the costs—not just money costs, but resource costs—were going to be dramatically higher to give the same surety of security. Indeed, it was probably almost impossible to give that surety of security in a number of cases. Therefore, I reluctantly accepted that these orders should continue.

What do I mean by the surety and the ability to ensure that these people could not be engaged in terrorism? Reference has been made to people being moved from where they live. Sometimes it is difficult to ensure that someone living in a very close housing estate in Hackney—I know those places well as I live in Hackney—has no connection or connectivity with people who we know are involved with terrorism, either through deep intelligence or because they have been prosecuted, have been inside, come out again and then we have seen them re-engage.

I think that the noble Earl, Lord Onslow, mentioned people being sent to Siberia. Certainly, we have preferred not to leave some people in Bethnal Green, Hackney or somewhere like that and we have sent them to Gloucestershire. That is not quite as bad as Siberia, although I know that Gloucestershire can be quite bad sometimes. It means that one is able to monitor them a lot more carefully. What are we trying to do with these people? We are trying to make our nation safer. We do not pluck these 11 people from the top of a bus somewhere; we have reason to have these 11 people there. We believe that they are involved in terrorism. Those things are sometimes very difficult to disclose.

The noble Baroness asked who looked at the detail of each of these cases. I certainly sit down and look at the proposal for a control order. Light touch was mentioned. I do not particularly like some of the light-touch measures because I believe that the only people who should be subject to control orders are those who pose a real and serious danger. I sit and go through the orders. There is normally a supporting document much bigger than the one before me of Security Service intelligence, SIS and other intelligence, which I go through. It takes a long time and I put a lot of effort into doing that. I then forward it to the Home Secretary, who I am sure puts just as much effort into it. It is an exhaustive look. I had a full head of dark hair and no bags under my eyes when I started, but these things take a lot of effort, so we do take them extremely seriously. As I say, these cases are reviewed properly. It is not a question purely of money costs but also of resource capability. Although we have doubled the size of the Security Service and increased the size of SO15 by 70 per cent, we are still quite tight on resources. There are a lot of plots and concerns, and to cover them properly is extremely difficult. That is an important issue.

As I say, we do not pluck these 11 people off the top of a bus. We do not say, “Let us pick those up and have a look at them”. These are people about whom we have serious concerns and an awful lot of intelligence. But as we know, intelligence is not evidence. It is not fair to say that we then just apply things to them. A judge has to agree that there is reasonable suspicion of involvement in terrorism-related activity, and that the order and its constituent obligations are necessary. A judge looks at this, so as well as me looking at it and the Home Secretary looking at it, a judge looks at all this detail as well.

A number of speakers mentioned people absconding. I think that the noble Earl, Lord Onslow, mentioned someone who had absconded and said that someone had made a statement some time ago about him no longer being a threat. I do not know about that. All I would say is that since I came into post not a single person has absconded.

It was in fact a Home Office Minister who made that statement. That is why it is so bizarre that they were dangerous while locked up but not dangerous when they had absconded.

My Lords, as I said, I am not aware of that. I would only say that not a single person has absconded since I have been in my post. I suppose one could argue that, once they have left the country, they are not such a direct threat to people in this country, but I would suggest that they are a threat globally and that they could be a threat to our forces in various countries.

The noble Baroness, Lady Hamwee, also asked—

My Lords, I am grateful to the noble Lord for giving way. Could he not deal with the noble Earl’s point about the seven who absconded, admittedly before the noble Lord’s time, and the point that I made in relation to AF? A year ago, they were regarded as highly dangerous; today, AF is at large. Is the risk being contained or not? If it is, why can it not be contained in relation to the other 11 controlees?

My Lords, I am afraid that I cannot give an answer on the seven who absconded before my time in post. I do not know what statement was made on that. I do not know which country they went to or what happened to them. I do not know the details. They may well be in prison somewhere else; I just do not know.

As regards AF, we have never accepted that a control order is not necessary; we still think that it is. I do not think that anyone here would expect me to go into the detail of what we are doing to make sure that we are secure.

Oh!

I do not think that I should go into the detail of what we are doing about this. I would not go into the detail of the approximately 2,000 people whom we are monitoring in certain ways. They are not as dangerous as the ones under control orders but we still believe that they need to be monitored, watched and checked in many ways. I would not dream of mentioning that on the Floor of the House and I do not believe that I should. It would put certain things at risk and would mean that those people would be able to get round the surveillance. Therefore, as I said, I do not accept that AF should not have been under a control order, and we have to be very careful about what we say in covering it. If all 11 people under control orders were out, that would take a lot of resource and I do not believe that we would be as safe as we are. That is why I am concerned.

The noble Baroness, Lady Hamwee, asked what changes to the rules the Government will make to ensure that the House of Lords judgment in the case of AF and Others is fully implemented. We do not believe that any changes are necessary and the House of Lords did not suggest that any rule changes are needed. This includes in relation to the special advocate talking to controlees after the service of closed material. The courts already ensure that hearings comply with the right to a fair trial.

The noble Baroness also talked about the impact of some of these measures on a controlled individual and his family. It is true that some of these measures are very severe. In my opening speech I touched on the fact that we take the impact on physical and mental health very seriously. I also touched on how we deal with local communities and how we review the situation constantly to make sure that controlees are all right. However, these are people whom we assess to be highly dangerous for our nation, and it is right that we put in place measures to try to ensure that we are safe. As I said, it is not something that one wants to do but it is right that we do it. However, we look very carefully at these very specific issues to make sure that these people are looked after.

I know that the noble and learned Lord, Lord Lloyd, accepts that our preferred approach in dealing with terrorists is prosecution. All of us here would like to carry out a full prosecution. However, it is not always easy to achieve that because intelligence and evidence are very different. I disagree with his suggestion that the control order regime is unjust. Control orders are subject to numerous checks and balances—importantly, including judicial oversight in every case. That judicial oversight explicitly involves ensuring that control orders and control order proceedings are compliant with the European Convention on Human Rights, including the right to a fair trial, which is now considered in the light of AF and Others. Moreover, the High Court has upheld four control orders since the House of Lords judgment following proceedings that were compliant with Article 6 tests laid down in AF and Others.

The noble and learned Lord, Lord Lloyd, said that the regime is ineffective. I dispute that; I do not believe that it is. I would not have left it in place if it were ineffective. I agree that it is not perfect but it is largely effective.

The noble and learned Lord also referred to a number of countries in Europe and perhaps elsewhere that are shining lights as regards not keeping people locked up. I can only say that when I speak to my opposite numbers in some of these countries, I am constantly amazed at how they seem able to bang people up for amazingly long times without what I would call a normal trial. That might be because of their different systems but we are by no means bad boys in that area.

On the length of sentences, we have national security concerns about imposing arbitrary end-date control orders, which the noble and learned Lord, Lord Lloyd, mentioned, regardless of the risk posed by an individual. Our position is that orders should be imposed for as short a time as possible commensurate with the risk that they pose. I know that the noble and learned Lord may disagree but the High Court has supported our view. The statutory test in control order legislation already ensures that the Government can lawfully renew a control order only if it is necessary to do so, and that any decision by the Secretary of State can be appealed by the controlled person. The High Court must decide whether the test has been met. I have touched on AF, the other point raised by the noble and learned Lord.

The noble Baroness, Lady Neville-Jones, talked about effectiveness. I hope that I have shown that control orders are effective. Our assessment is that they are. The noble Lord, Lord Carlile, assesses them as effective, as does the head of the security service. We have seen the results in terms of stopping individuals being involved in terrorist activity, contacting people with whom they work and doing certain things on whichever system they are using. The internet was mentioned, which is used for radicalisation and other things. That is why there are restrictions. I agree that it may not be nice for the youngster in the family but our aim is to protect the public. These people are not little innocents pulled off a bus; they are people on whom we have considerable intelligence as being a risk to our population.

The noble Baroness, Lady Neville-Jones, talked about security and wanted a brief about that. I do not think that we can keep on updating. In the CONTEST 2 strategy last year we gave a clear exposition of the threat and we are now looking at it a year on. We will be saying where we are on that in the near future.

The threat level is not a ministerial decision for good reasons. It is a decision for the Joint Terrorism Analysis Centre and it would be wrong to go through the reasoning on why that is being raised. I note and was pleased to hear that the noble Baroness is willing to listen to an informed person. I thought for one glorious moment that it would be me, but it was the noble Lord, Lord Carlile. Never mind.

I was asked: if we can prosecute, do we? The answer is yes. We look at and review control order cases. If we can prosecute them, that is what we want to do. The travel restriction order is an interesting point. We are not convinced that it makes a real practical difference but we will be thinking about it and considering whether it is worth going further with it.

The noble Lord, Lord Goodhart, referred to judges. They are fully involved in control orders, as I hope I have already covered. There is no doubt that control orders have prevented terrorist activity, and the noble Lord, Lord Carlile, agrees. We have seen their impact. The reason why control orders are broken is because the people want to engage and make contact. We see them talking to people and using systems that they should not—we have a certain ability to know what is going on. Control orders have a major impact.

The noble Earl, Lord Onslow, asked about people under control orders and the risk that they present. They present a serious risk. We absolutely believe in the rule of law and I do not accept that this Government have withdrawn from that. There have been great changes as a result of 9/11 and the risk of global international terrorism of a type that we have never seen before. Groups of people do not mind losing their own lives. All they want is to cause mass civilian casualties. In certain cases we have not got everything right and inevitably we have had to make changes. We have always tried to ensure the rule of law and our belief in those standards, as everyone in this House does.

We always read JCHR reports very carefully because they are very important. We do not agree with all the assertions made in the JCHR report. The noble and learned Lord, Lord Scott of Foscote, touched on this. We believe that control order legislation is fully compatible with the ECHR. Many of the amendments to the regime proposed by the JCHR have been considered specifically by Parliament in debates and by courts in litigation. Neither Parliament nor the courts agreed that these changes were necessary, and the Government do not agree with the JCHR in that context.

I think I have spoken for long enough. The noble Lord, Lord Carlile, put it bluntly in his most recent annual report:

“In stark terms, the potential cost of losing control orders is that the United Kingdom would be more vulnerable to a successful terrorist attack”.

I agree. I think they are the least worst option, and I have no doubt that the director-general of the Security Service and the intelligence services commissioners would not have agreed if they did not believe that that was the case. I believe that the country would quite rightly never forgive us if we removed control orders and it had that impact on the country. I therefore have no hesitation in commending this order to the House.

My Lords, I am grateful to all speakers in this debate. I say to the noble and learned Lord, Lord Lloyd, that if my amendment fails, these Benches will be very happy to support his.

I thought at many times that the logic of what the noble Baroness, Lady Neville-Jones, said would mean that she would support the Government. Perhaps it was a half-and-half speech and, in her eyes, we have drawn, which leads to the proposed abstention. I thank the Minister for the assurances that he gave. I take what he said very seriously, and I by no means dismiss the points that he made. He reminded me of the 2,000 people under surveillance. I cannot resist commenting that that suggests to me that the resources required for a handful more cannot be quite as great as we are being led to believe.

We take terrorism very seriously but our objections, which I will not go through again in view of the time, have not been met. However, I shall comment on one point that the Minister made in his winding–up speech. It sounds a little as though the Government have fallen into a temptation to impose control orders not on the balance of probabilities. Then if, or indeed when, conditions are broken, an offence is automatically committed, which means that the individual—against whom there is no evidence that can be used—finds himself imprisoned under that parallel route.

We have taken a good deal of time, but it is right that we do so. We are not persuaded. I wish to test the opinion of the House.

As an amendment to the Motion in the name of Lord West of Spithead, at end to insert “but this House regrets that, following the judgment of the House of Lords in Secretary of State for the Home Department v AF and the subsequent revocation of AF’s control order on the ground that he did not have a fair hearing, Her Majesty’s Government have not, in the five years since the Act was passed, found a means of dealing with suspected terrorists that is just and effective; and calls on the Government to introduce primary legislation to limit the duration of control orders to a maximum of one year, without renewal”.

My Lords, in moving this amendment, I perhaps should inform the House that I will also be calling a Division. I have nothing whatever to add on the first part of my amendment, which has been covered earlier in the debate. But I should like to add a few words on why I am calling on the Government, whoever they may prove to be, to limit control orders to one year without renewal.

In his third report, the noble Lord, Lord Carlile, pointed out that control orders were never intended to continue indefinitely. He recommended that they could and should be limited to a period of two years. His reason was that, after two years, the controlee was unlikely to be of much use to his fellow terrorists. The noble Lord, Lord Carlile, as we have learnt this evening, is—if I may use a nautical metaphor—the sheet anchor of the Government’s case; yet the Government rejected altogether his very sensible suggestion without giving any reason. I agree with the reasoning of the noble Lord, Lord Carlile, on that—if not on everything else—and I suggest that it would apply equally to my amendment, which proposes that a controlee should not be kept for more than one year as a maximum. If the person has been out of circulation for that long, he will be of very little use to his fellow terrorists.

That brings me to the stance of the Official Opposition. I can understand why they abstained on the amendment of the noble Baroness, Lady Hamwee, although I greatly wish that they had not. However, what is their difficulty with my amendment? They must surely regret, as I do, that the Government have not done more in the past five years to find a substitute for control orders. Why do they now not stand up and say so? I remind the noble Baroness, Lady Neville-Jones, that her predecessor said as long ago as 24 February 2007 that the Conservative Party would vote against any subsequent renewal of the control order legislation—that is, in 2008 and subsequent years—yet they have not done so. It is now 2010, and I suggest that it is high time that they put into practice, in relation at least to my amendment tonight, what they have refused to do in the past two years. I beg to move.

My Lords, as I mentioned in my previous summing-up, our position is that control orders should be imposed for as short a time as possible, commensurate with the risk that is posed by the person in question. The High Court has supported our view.

When the new Labour Government come in, I shall advise them that we should review and consolidate all counterterrorism legislation. I am sure that control orders would be part of that. However, it would be wrong at the moment to have an arbitrary end point to an order; it surely has to be based on the risk that the individual poses. As I said, we would be putting the country at risk if we did not do that.

I wish to test the opinion of the House.