Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2007

My Lords, no one should underestimate the responsibility of government. The Joint Committee on Human Rights, of which I am a member, has re-emphasised in its latest report on the order the importance of the positive obligations on states to take effective steps to protect the public from the threat of terrorism. Protecting the public involves protecting liberty and those principles which, by being essential to the rule of law—habeas corpus, due process, the presumption of innocence and standards of proof—are the cornerstones of liberty. To erode them ourselves is to score a goal for the extremists, who seek their destruction. We must therefore be very careful. Like the Joint Committee on Human Rights as a whole, I find it particularly significant that the Director of Public Prosecutions, with all his authority and experience, in a recent lecture to the Criminal Bar Association argued firmly that we should hold it as an article of faith that crimes of terrorism are dealt with by criminal justice and that, in the wake of 9/11, some of the values enshrined in both the European convention and the common law appear to be losing their status so that some people now seem to think that such fundamental rights as the right to a fair trial and the right to liberty can be compromised, even when the life of the nation may not be entirely at stake. One of the worst manifestations of this approach, he suggested, has been the resort to parallel jurisdictions, where standard protections, quite deliberately, are no longer available and suspects are removed from the protections of criminal justice and placed instead in quasi-judicial or even non-judicial fora deliberately hostile to due process. The Joint Committee found itself very much in line with the DPP’s assessment. The committee has underlined that, in its view, the Government should now urgently address the obstacles to prosecuting for terrorism offences, adapting ordinary criminal procedures where necessary but always preserving the suspect’s right to judicial review of detention and to a fair trial before a court which is truly judicial. The issue of intercept material is highly relevant to all this. It is obvious that intercept material is frequently critically relevant to the action that is taken. As I understand it, the noble Lord, Lord Carlile, holds that, although the law might be amended to make use of telephone intercept in criminal trials, the availability of such evidence would be rare and possibly of limited use. By contrast, the DPP, in the lecture to which I have already referred, stressed not only that we need to find ways to remove the bar on admissibility of intercept evidence but that that would overcome one of the main obstacles to prosecuting terrorist suspects. Surely the reflections of the chief prosecutor cannot be taken lightly. The noble and learned Lord, Lord Lloyd of Berwick, is to return to this issue with his new Bill on Friday next week. As a keen supporter of his position, I am frustrated to find that I shall that day be taking evidence for a current Joint Committee on Human Rights inquiry away from London. I genuinely wish him well. These issues and others drive home that the order before us goes to the kernel of what is at the centre of the Britishness that so concerns the Government. The order deals with grave and far-reaching matters, as my noble friend herself emphasised. Proper consideration is therefore imperative. We must never too easily lend ourselves to what may prove to be a fundamental change in the nature of British law. The most careful deliberation of what is being proposed and its implications is imperative. In its report on the first renewal of the control order regime, the Joint Committee was very critical of the lack of opportunity for meaningful parliamentary scrutiny of such orders, especially as, at the time of the passage of the 2005 Act, the Government had indicated that there would be further opportunity to debate amendments to the control order regime in the light of its operation. The committee regretted that the Home Secretary had decided to exercise his power to renew the Prevention of Terrorism Act rather than bring forward a Bill. This inevitably constrained the opportunity for meaningful parliamentary scrutiny of the regime and gave no opportunity to amend the legislation. One of the reasons given by the Home Secretary for not bringing forward a Bill was that he was waiting for the report of the noble Lord, Lord Carlile, on the definition of terrorism. A year later that report has still not been published by the Government, which I find disturbing. In his response to last year’s Joint Committee on Human Rights report the Home Secretary recognised that in the debates on the 2005 Act a commitment was made to Parliament that there would be a further opportunity to debate the control order regime and to amend the legislation. Indeed, he indicated that the Government intended to bring forward a terrorism consolidation Bill in 2007, which would create an opportunity to amend the control order’s provisions. From the comments made by the Minister during the recent renewal debate in the Commons, it seems that such a Bill cannot now be guaranteed to appear before the 2008 renewal of the order. I hope that my noble friend in replying to this debate can assure us that that is not the case. Last year, the report of the noble Lord, Lord Carlile, on the operation of the Prevention of Terrorism Act and the renewal order were both laid on 2 February. The renewal debate took place in the House on 15 February. The Joint Committee, among others, pointed out that that gave only limited time for proper scrutiny, which should seriously take into account the noble Lord’s observations. This year the order was laid on 1 February, but the noble Lord’s report on the operation of the regime was not laid until 19 February—only three days before the renewal debate in the Commons. Surely my noble friend would agree that this is going from bad to worse. How can that be reconciled with proper scrutiny on such grave matters? Paragraphs 21 to 29 of the Joint Committee report on the renewal order deal with the deprivation of liberty. They describe the nature of existence under a control order, and draw heavily on the measured conclusions of Justice Sullivan in the High Court in the case of JJ v Secretary of State for the Home Department. In that judgment he described the situation under the control orders as ““the antithesis of liberty””, and said that, "““these control orders go far beyond the restrictions in those cases where the European Court of Human Rights has concluded that there has been a restriction upon but not a deprivation of liberty””." He quashed the orders in question on the grounds that they were in effect derogating control orders, which the Home Secretary has no power to make. The Court of Appeal upheld that ruling. As the Joint Committee reports, seven of19 control orders made or renewed this year have been quashed on the grounds that they were so restrictive of liberty as to amount to a deprivation of liberty. This means that while purporting to be non-derogating control orders, they were in fact derogating orders, which there is no power to make in the absence of a derogation from Article 5 of the European convention. A derogating control order can be made only by a court, and only then following a derogation from Article 5 by Parliament. What does my noble friend say to the observations by the Joint Committee that while it must be recognised that the litigation concerning the compatibility of current control orders with Article 5 has yet to run its course, Parliament is being asked to renew a power, which not just the Joint Committee but the High Court and the Court of Appeal have said is being routinely exercised in breach of the most fundamental of all human rights—the right to liberty, as expressed in Article 5 of the European convention. Also, what does my noble friend say to the committee’s observation that if the European Court of Human Rights eventually decides that the control orders that have been challenged are unlawful in the absence of derogation, the Government will effectively have been operating a de facto derogation from Article 5, and that Parliament is being asked to be complicit in such a de facto derogation without the opportunity, with all that it now knows about how the power is being used, to debate whether such a derogation is justified? On due process, the Joint Committee realises that, in the case of the Secretary of State for the Home Department v MB, the Court of Appeal has declined to endorse the finding of Mr Justice Sullivan in the High Court, and has upheld the compatibility of the control order regime with the right to fair hearing in Article 6(1) of the European Convention. It goes without saying that the Joint Committee takes the conclusions of the Court of Appeal most seriously. However, after careful deliberation, in all integrity, it remains doubtful whether the procedures for judicial supervision of control orders in the Prevention of Terrorism Act in fact secure the substantial measure of procedural justice claimed for them. In this, we are apparently once more in line with the Director of Public Prosecutions, when he puts it that the abandonment of fair trial protections in the face of terrorism amounts to an abject surrender to nihilism, and that our criminal justice response to terrorism must be proportionate and grounded in due process of the rule of law. He argues that this means that, in fighting terrorism, we should not make exceptions to the rule of law, but use its inherent strength in our activities. As the Joint Committee reminds us, certain fundamental principles of the rule of law are non-negotiable. They represent the essence of fairness. Trials should be routinely open and reported before independent and impartial judges. There is no place for secret courts and secret justice. Equality of arms and the right to call and examine witnesses under equal conditions are essential. Defendants are entitled to know the case against them, and must have full access to the state’s case against them. The presumption of innocence and the criminal standard of proof beyond reasonable doubt are fundamental. What is my noble friend’s response to the Joint Committee’s position that these due process standards should apply to more restrictive derogating control orders because of the severity of the restrictions they contain? We must all understand the Government’s dilemma as they face the real threat of international terrorism. What should we do about individuals who pose a serious threat but cannot be deported, or whose prosecution presents security difficulties? The Joint Committee has concluded that the only human rights-compatible course is to persevere in finding ways of bringing a proper prosecution. I could say more about the Joint Committee’s findings. I hope that noble Lords will read that report very carefully. I conclude with a personal observation in which I fervently believe. I am totally convinced that the breeding of terrorism will be contained by transparent justice in all its manifestations. I am equally convinced that, by ever allowing ourselves to be deflected from such transparent justice, we are in danger of feeding the breeding grounds of recruits for terrorists.