Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006

My Lords, I support the amendment of the noble Lord. Most of those who were present during that long night of 10 to 11 March 2005 will remember in particular the speech of the noble Baroness, Lady Hayman. She made the point that the annual renewal of the 2005 Act by order was not the way forward. She had two reasons: first, the importance of the subject matter of the Bill, affecting as it does the liberty of the subject; but, secondly, the inordinate haste with which that Bill was pushed through Parliament. The noble Baroness therefore proposed a sunset clause, to take effect on 31 March 2006, the consequence of which would have been that the Act would lapse on that day unless renewed by primary legislation. Her amendment to that effect was carried by 205 to 100—a huge majority. However, the Prime Minister had indicated that he was against a sunset clause, so when the Lords amendment went to the Commons it was rejected. However, at 11.12 pm, this House voted again to have a sunset clause, this time by 192 to 107. This House did so again at 5.43 am, by 164 to 96, and yet again at 12.56 pm the next day, by 194 to 123. A more convincing expression of the view of this House would be hard to imagine. The House then adjourned until 6.30 pm on 11 March. In the mean time, the parties were able to reach an agreement. That agreement was announced by the Lord Chancellor. It is set out in the Hansard for 10 March—part 2—at column 1058. The agreement was that this House would have an opportunity to review the 2005 Act in the spring of this year, after the noble Lord, Lord Carlile, had published his report on the operation of the Act. The whole object was that we in this House should have an opportunity of reviewing the 2005 Act and of amending it, if necessary, before being asked to renew it. That, one might think, was reasonable enough. That was not all, however. In July 2005, the Home Secretary repeated his undertaking that he would return to control orders in the spring of this year. Yet, on 2 February, the day the noble Lord, Lord Carlile, published his report, the Home Secretary announced that the 2005 Act would not be reviewed in spring after all, but would instead be renewed by order on 15 February, which is of course today. The review promised for the spring of this year would not now take place until the end of 2007. That Statement by the Home Secretary was one of great importance, but for some reason—which I have not been able to find out—it was never repeated in this House, which is why it came as quite a surprise to many of us. I suggest to the House that the course that is now proposed is a clear departure from what was agreed on 11 March 2005. It was on the basis of that agreement that this House let the 2005 Bill go through. It is also a clear departure from the undertaking given by the Home Secretary in July that he would return to control orders in the spring. The Home Secretary gave three reasons why we are not to have the opportunity of reviewing the 2005 Act now. The first, he said, was that it would be premature, because the validity of control orders had not yet been tested in the courts. That presumably means that we must wait until the first case reaches the House of Lords. In any event, that difficulty must have been appreciated when the Home Secretary gave his undertaking in 2005. Secondly, he said that we must wait until the noble Lord, Lord Carlile, has completed his review of the current Terrorism Bill and produced a new definition of ““terrorism””. What the relevance of that would be is entirely beyond me. Thirdly, he said that the current legislation is in a mess and needs to be consolidated. I entirely agree with that, and the reason is not far to see. None of those reasons explains why a short Bill could not have been introduced so that the 2005 Act could be renewed by primary legislation instead of by order and so that we could have had the opportunity promised to review the Act now. That was something which the Home Secretary did at least consider, according to his Statement, yet he rejected it for the three reasons which I have given. It is all the more important that we should have had that opportunity in view of two things: first, the facts now revealed by the Carlile report; and, secondly, the view of the Joint Committee on Human Rights, described by the noble Lord, Lord Bassam, in a marvellous understatement, as ““informative””. I describe it as damning, because damning is what it is. The fact is that nine men are currently being detained pending deportation with no idea when a memorandum of agreement may be reached with the countries to which they are supposed to be deported. Of those nine, four have been granted bail on very severe restrictions, amounting in all probability to deprivation of liberty. Another nine are subject to control orders, described by the noble Lord, Lord Carlile, as extremely restrictive. The Joint Committee on Human Rights correctly pointed out that, whereas a single restriction may not amount to a deprivation of liberty, a number of restrictions cumulatively may well do so. That is the view which it has formed about those currently subject to control orders. I will read one short paragraph—paragraph 38—of its 12th report, which states:"““In our view, those obligations are so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5(1) ECHR. It therefore seems to us that the control order legislation itself is such as to make it likely that the power to impose non-derogating control orders will be exercised in a way which is incompatible with Article 5(1) in the absence of a derogation from that Article””." That was exactly my view when the Bill was going through this House and that is why I have always opposed control orders. But it is now too late to ask for a review of this legislation; we can do nothing but renew it. Meanwhile, the nine who are currently detained must presumably wait until the winter of 2007 for the legislation under which they are currently being detained—which may well be contrary to the Human Rights Act—to be properly reviewed by Parliament. In the interval, their only hope is to appeal. I regard that as profoundly unsatisfactory.