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

My Lords, at the climax of the great debates of March 2005, to which the noble and learned Lord, Lord Lloyd of Berwick, referred, the Home Secretary undertook to revisit control orders in primary legislation at the earliest possible moment after the publication of the report of the noble Lord, Lord Carlile. That has not happened. In a debate in another place, on 2 February this year, the Secretary of State explained why. Essentially, he said that he would meet his undertaking, not in 2006, but most probably in 2007. Meanwhile, he wanted another 12 months’ grace. What has happened is precisely what so many of your Lordships feared in March last year. The noble Baroness, Lady Hayman, has extremely generously—rather unfairly to herself—said that she was not tough enough. That could equally be said of ourselves. One stage later than the noble Baroness, we took the view that the offer made by the Home Secretary in another place in all the circumstances ought, on balance, to be accepted. We were wrong. We ought to have been even tougher than we were. That is the situation that we face. We must decide whether or not to renew the order for another 12 months. The right honourable gentleman the Home Secretary was at his most emollient and constructive in the debate in another place on 2 February. He prayed in aid three reasons for asking for another year of grace. The first was that there are now, as I understand it—I know that the noble and learned Lord, Lord Lloyd of Berwick, is extremely pleased about this—constructive negotiations going on between the Government and the Opposition and, indeed, between the Government and its own security advisers about a way through the difficulties the Government see in allowing intercept evidence in court proceedings. The right honourable gentleman the Home Secretary referred to that in specific terms:"““the Government are undertaking to find, if possible, a legal model that would provide the necessary safeguards to allow intercept material to be used as evidence””.—[Official Report, Commons, 2/2/06; col. 479.]" We on these Benches welcome that statement; but we also understand that, as the model is not yet in existence, the Government will need extra time to put it in place. A second reason why the right honourable gentleman wished to delay the matter was that the noble Lord, Lord Carlile of Berriew, was undertaking an intense study into the definition of ““terrorism””. The absence of a definition has to some degree blighted the progress of the Terrorism Bill in your Lordships’ House. We therefore recognise that the Government will need time to absorb the conclusions of the noble Lord, Lord Carlile of Berriew, before coming forward with a definition worthy of inclusion in legislation. The right honourable gentleman also suggested a third reason and claimed support from the noble Lord, Lord Carlile of Berriew, in advancing it. It was that none of the current control order litigation had reached the point of judgment in the courts and that consequently we should wait and see what the courts said before reconsidering the position of control orders in our legislation. I beg to differ with the right honourable gentleman that that is a valid reason for waiting. Suppose that the courts find against the Government, especially if the basis for those findings discloses one or more breaches of the European Convention of Human Rights. In those circumstances, will the Government not be placed in exactly the same situation as in December 2004, following the Belmarsh decision? If your Lordships agree with that, it adds great weight to the observation of the noble Lord, Lord Thomas of Gresford, that the Government will find themselves in the most ignominious position. They are not leading the nation in finding the right solution but following the courts—institutions about which they have repeatedly expressed deep reservation. What an irony if that were to occur. Whatever the merits of the right honourable gentleman’s observations about intercept evidence and the definition of terrorism, in my respectful submission, the argument that we should wait for the courts is quite unacceptable. Many of your Lordships have referred to the report of the Joint Committee on Human Rights. I pay tribute, as did the noble Baroness, Lady Stern, to all the work done to ensure that that report was before your Lordships’ House tonight. It is worth quoting from the concluding paragraph of that report, which flowed from a detailed analysis of the compatibility of control orders with the European convention:"““In light of the concerns expressed in this Report, we seriously question renewal without a proper opportunity for a parliamentary debate on whether a derogation from Articles 5(1), 5(4) and 6(1) ECHR is justifiable, that is, whether the extraordinary measures in the Prevention of Terrorism Act 2005, which the Government seeks to continue in force, are strictly required by the exigencies of the situation. It would be premature for us to express a view on that question. We merely conclude at this stage that we cannot endorse a renewal without a derogation and believe that Parliament should therefore be given an opportunity to debate and decide that question””." We have not had an opportunity to debate the report in detail. We have only seen it for a day and a half, and tonight the Government are asking us to take a decision about the whole system of control orders. It is worth noting, however, that the Joint Committee’s concerns went not just to one article in the convention but to a large number: to Article 5(1) and Article 5(4), which concern the access to courts and the adequacy of court procedure to ensure that those subject to control orders are given proper rights; to the fairness of trials under Article 6(1); as the noble Baroness, Lady Stern, explained, to the convention’s provisions on family life; and finally, because only one of the 18 people subject to control orders is a British national, to whether or not there was also a breach of Article 14. That is indeed a rich jurisprudential tapestry; and your Lordships have not had the opportunity to consider it in any detail. However, I wish to draw your Lordships’ attention in particular to one point in the Joint Committee’s report. In the final sentence of paragraph 38, the Joint Committee states:"““In our view, those obligations””—" a reference to the obligations in the control orders—"““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””." The noble Lord, Lord Carlile of Berriew, had something to say about that matter at paragraph 43 of his report, to which the noble Baroness, Lady Stern, referred. He is referring to the nine of the 18 who are still subject to control orders:"““The obligations include an eighteen hour curfew, limitation of visitors and meetings to those persons approved by the Home Office, submission to searches, no cellular communications or internet, and a geographical restriction on travel. They fall not very far short of house arrest, and certainly inhibit normal life considerably””." It is true that the noble Lord, Lord Carlile, said previously in relation to the decisions taken by the Secretary of State at, confusingly, paragraph 38 of his own report:"““I would have reached the same decision as the Secretary of State in each case in which a control order has been made””." The noble Lord was making that observation, of course, in the context of the particular law that had to be addressed by the Home Secretary and therefore not in the additional context of the human rights convention.       Only nine of the 18 people initially subject to control orders are now subject to control orders. A further nine have been removed from the control order regime and incarcerated pending deportation. They are divided into two classes. One of the nine is a Jordanian and, if deported, will go back to Jordan. The Government have, as I understand it, signed a memorandum of understanding with Jordan. I have not seen the document, but I suppose that the Jordanian Government undertake not to breach articles 2 and 3 of the European convention in relation to the treatment of that individual. No doubt the matter will be litigated in the courts, and we shall wait with interest to see what conclusion the courts reach about the viability of memorandums of understanding when signed. However, the other eight come from countries with which we have not yet concluded memorandums of understanding. Therefore, it follows, as night follows day, that it will be impossible to deport those individuals in the absence of such memorandums. Those people are incarcerated with no idea about how long they are going to be there. Is that compatible not only with the European Convention on Human Rights but with the sense of fairness that runs through our common law traditions? We have to ask ourselves those questions. I have one final observation, your Lordships will be relieved to hear. I go back to the point made so elegantly by the noble Baroness, Lady Hayman, in the opening stages of her speech. Control orders, while necessary in certain circumstances, are measures of last resort. What we all want to see is prosecution, not control orders. Every opportunity must be taken to ensure that we prosecute those individuals. A great battle took place during the debates of March 2005 over how the Government could guarantee that, in every control order case, the individual concerned was not capable of being subject to a prosecution in our criminal courts. We on these Benches pressed for an undertaking from the Director of Public Prosecutions that prosecution was impossible before the control order regime should become activated. The Government resisted that, in the end successfully, and substituted for our view that it should be the DPP who took the final decision the view that it should be the chief constable of the area concerned that should take the final decision. The noble Lord, Lord Carlile of Berriew, had something to say about this as well. At paragraph 58 of the report he said:"““I have seen letters from chief officers of police in relation to each controlee certifying that there was no realistic prospect of prosecution. Little is given by way of reasons. Whilst I have no evidential basis for doubting the genuine nature of the section 8 exercise, in my view the letters provided by chief officers should give clear reasons for the conclusion that there is not evidence available that could realistically be used for the purposes of a terrorism prosecution””." It is plain that the system put into operation by the Government in respect of chief constables and chief police officers is not working properly. I particularly ask the Minister to address that point in his remarks because it goes right to the core of the control order system. The control order system must be limited to cases where prosecution is simply not possible. Once it starts to encroach in the wrong direction over that line, we will, indeed, enter an extremely dangerous world. I look forward to the Minister’s reply.