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

My Lords, first, I thanks all noble Lords who have made contributions to an intriguing and difficult debate. One has to accept it is a very difficult debate, but I start from the point—I am grateful that there now seems to be almost universal recognition of this—that we face a continuing threat from terrorism and terrorism-related activity. There must always, I would argue, be an acceptance that it is the role of government to tackle terrorism, to tackle it head on and to deal with the issues that flow from it. That is where we start from; and that is where, I think, we can have a point of agreement. It is also the Government’s strong belief—a belief that has found support in your Lordships’ House—that control orders have an essential role to play in countering the threat of terrorism and in contributing to a more hostile environment for terrorists to operate in. That view is shared by the independent reviewer of the legislation, the noble Lord, Lord Carlile of Berriew. He has been much quoted but is sadly absent from the Chamber this evening. I made it clear in my opening remarks that we would closely study the practical recommendations that the noble Lord, Lord Carlile, made in his report. That is where we start from. From that easy start, we begin to diverge in our analyses of the current situation and the import of where we are at the moment and how we have got there. I listened carefully to what the noble Lord, Lord Thomas of Gresford, had to say. His comments, particularly those rehearsing the history of where we were, I listened to more carefully than most. He, the noble and learned Lord, Lord Lloyd of Berwick, the noble Lord, Lord Kingsland, and others were critical of the fact that we will not have the opportunity, as they see it, to revisit the issue of control orders—rather than, as we are at the moment, looking at the renewal—and go back to first principles in the debate. The suggestion was powerfully made that in some way the Government had reneged on their commitment. I certainly accept that the situation has changed since we had those important, long fought-over debates last year when we considered the Prevention of Terrorism Act 2005. The noble Lord, Lord Thomas of Gresford, made the point that the undertaking the Government made has, in a sense, been renegotiated. He was right to make that point. Events, as my noble friend Lady Hayman made clear, have somewhat overtaken us. For that reason, we have had to review the situation. As has been said in your Lordships’ House, the Home Secretary in his Statement of 2 February drew attention to the fact that we now have a report produced by the noble Lord, Lord Carlile, as an independent reviewer of the Act on its first nine months of operation. At that stage we did not believe that legislative changes were required. We did not believe that a purpose would be served by introducing further legislation at this stage. We preferred to have a different timetable, but a timetable that meant that we would consider a draft Bill in the spring of next year, and that Bill would be the subject of some pre-legislative scrutiny. That is a practical view that the Home Secretary has taken of his initial commitment. He also made the point that there had not been an opportunity for a complete cycle of control orders to be reviewed and that legal challenges brought by those who have been the subject of those control orders have yet to be completed. I agree that it would be premature, in those circumstances, to bring forward legislation in advance of that. It is right, too, that we consider the importance of the review of the Terrorism Act 2000 by the noble Lord, Lord Carlile, and his conducting of a review of the legal definition of terrorism. We think that that is probably a better, more coherent and cohesive way of looking at the subject, and it will provide Parliament with the opportunity in the fullness of time to have another look and to interrogate the issues. Much of the comment made by noble Lords in this debate focused on the report by the Joint Committee on Human Rights. We acknowledge that report as being important and will take careful note of what it has said. Noble Lords have drawn attention to particular points in that report. The noble Lord, Lord Kingsland, in particular, drew attention to Paragraph 38 and the issue of whether the non-derogating control orders were being operated in practice in a way that amounted to a deprivation of liberty and therefore required a derogation from Article 5(1) of the European Convention on Human Rights. We think that the existing control orders, with the more restrictive obligations referred to in the report of the noble Lord, Lord Carlile, were made with the permission of the court. The court did not consider that the orders amounted to derogating control orders, so we are not in agreement with that particular observation from the JCHR. We also take issue with the other assertion made in the report on whether the procedural protections are compatible with Article 5(4)—the right of access to a court to determine the lawfulness of detention and the right of a fair trial in determination of a criminal charge and a fair hearing in the determination of civil rights obligations under Article 6(1) of the European Convention on Human Rights and with the common-law right to a fair trial and hearing. We do not accept that control order proceedings amount to a criminal charge. They are civil proceedings with civil procedure rules, and those have been debated in both Houses of Parliament. We think that there is appropriate judicial oversight, provided for in the legislation. There is an automatic judicial review of the Home Secretary’s decision. The review will be a full hearing before the High Court or a Court of Session. There are separate rules of court set out in the civil procedures that allow the court to hear both open and closed material. Control orders also have a maximum duration of 12 months. They can then be renewed by the Secretary of State, but this provides for a separate right of appeal. If a control order obligation is modified without the consent of the controlled person, that also gives rise to a right of appeal, and any individual may also apply to the court for an order to be revoked or an obligation to be modified where there is a change of circumstances. The noble Lord, Lord Kingsland, made particular reference to the committee’s overall conclusions. We do not accept that any of the control orders that we have made impose obligations on individuals that amount to a deprivation of liberty. Therefore, we do not accept the point that they are derogating control orders, nor that a derogation is required. We have not sought to make a derogating control order, but were we to do so, derogation would have to be approved by both Houses of Parliament. Therefore we cannot accept their final conclusion in that regard. I heard what the noble Lord, Lord Kingsland said about that. He cited the report of the noble Lord, Lord Carlile of Berriew, at paragraph 53. We certainly accept the seriousness of that observation but, in conclusion, it must be said that, although the noble Lord, Lord Carlile of Berriew, says that they fall not far short of house arrest, they do not, in the end, amount to house arrest. It is certainly true that they place rigorous conditions on the controlee in those circumstances. It is also worth dwelling on the report of the noble Lord, Lord Carlile. He makes important points about how the control order regime works. At paragraph 35—I think that is worth reading this into the record—he states:"““As part of my function as independent reviewer, I task myself to replicate exactly the position of the Home Secretary at the initiation of a control order. I call for and am given access to the same files as were placed before the Secretary of State when he was asked to determine whether a control order should be made. These files include detailed summaries of evidence and intelligence material, as well as the draft Order and obligations. The summaries describe not only the activities alleged against the individual and the sources of information but also the context of those activities in a wider and very complex terrorism picture””." At paragraph 38, to which reference has also been made, he states:"““I would have reached the same decision as the Secretary of State in each case in which a control order has been made. He asks questions and certainly does not act as a mere cipher when the papers are placed before him. The process is rigorous and structured in appropriate way, so that the decisions are very definitely those of the Home Secretary, not his officials””." I think that the noble Lord, Lord Carlile of Berriew, is saying that the process is very rigorous. It is a process that has been taken very seriously by the Home Secretary. Yes, if you like, there is a deprivation of some liberties; that much is clear from reading the report and the way in which the draft control order—referred to as a pro forma—is set out. But that process is gone through with great seriousness because it needs to be and because the potential threat that may arise from that person being entirely at liberty is real and current, as the noble Lord, Lord Carlile, states in parts of his report. Other points were raised during the debate that I felt that I should respond to. The noble and learned Lord, Lord Lloyd of Berwick, asked why we were not bringing forward a short Bill to renew the 2005 Act. The noble Lord, Lord Carlile, made no recommendations regarding the operation of the control order system that require primary legislation. If the sole purpose of such a Bill was to renew the Act, today’s order, which your Lordships are free to vote against, serves the same purpose. The noble and learned Lord, Lord Lloyd of Berwick, asked me a short question: why the Home Secretary’s Statement on the important issue of why we could not have full consideration of the Bill was not repeated in your Lordships’ House. Simply, that was because the opposition parties did not believe that it was essential for the Statement to be repeated. Statements are repeated in your Lordships’ House essentially on request. The noble Baroness, Lady Stern, referred to the European Committee on the Prevention of Torture and recommendations that it may make. We understand that the ECPT will report in March of this year, but it has made no immediate recommendations to us, following its visit to us last July. I understand that, in November, it made one recommendation about an individual who is the subject of a control order, to which the Government are, of course, giving careful consideration, but it made no general observations to the way in which the control order regime worked. I think that I have covered most of the points raised. The noble Lord, Lord Kingsland, asked me about prosecutions. I entirely agree with the noble Lord that it would be greatly preferable if we could bring a prosecution in every case. The noble Lord, Lord Carlile of Berriew, made that point in his report, and we do not fundamentally disagree with it. But we must accept that there are circumstances—your Lordships’ House has accepted the point in the past—in which it would not be appropriate to bring cases. The noble Lord, Lord Kingsland, made the point, as he has done before, as has the noble and learned Lord, Lord Lloyd of Berwick, that it was possible that more cases would be brought before the courts if telephone interceptions and material derived from them were part of evidence that could be fashioned into bringing a case. The noble Lord, Lord Carlile of Berriew, says this:"““Although the availability of such evidence would be rare and possibly of limited use, I remain of my previously expressed view that it should be possible for it to be used and the Law should be amended to a limited extent to achieve that””." As the noble Lord, Lord Kingsland, said, the Home Secretary is considering that, and with some seriousness. We accepted the other point made by the noble Lord, Lord Carlile of Berriew, about prosecutions. I referred to it in my opening remarks; perhaps the noble Lord missed it. On the police providing more information about why prosecutions were not possible, I said that we accepted and acknowledged the soundness of the principle, and we will examine carefully with stakeholders how that might work in practice. So the court may be provided with that level of explanation. I am grateful for the seriousness with which your Lordships’ House has approached the matter. Clearly, the issue will need to be kept under very careful review. There are opportunities for both Houses of Parliament to do so. I am grateful for the debate and the quality of the contributions. Our overall role as government must first and foremost be to protect the general public. Whatever one thinks about control orders, how they operate and the difficulties with them, we believe that they are helping and making a major contribution to public protection. They do so while maintaining safeguards to protect the rights of individuals. With that very much in mind—we clearly respect individuals’ rights, but we view the terrorist threat very seriously—I commend the order to your Lordships’ House.