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

My Lords, I am glad to follow the noble Lord, Lord Judd, because he has said much that I would have wanted to say, and so well, that I can be quite brief. When the Act was going through the House in those fraught days at the beginning of 2005—which I think none of us will ever forget—many of your Lordships had some sympathy with the then Home Secretary, Mr Charles Clarke. Part 4 of the 2001 Act was about to expire. The suspects detained at Belmarsh for four years without trial would then have to be released. The decision of the House of Lords in A’s case, quashing the derogation on the basis of which Part 4 of the 2001 Act rested, was given only on 16 December 2004. So the Home Secretary did not have long to think what to do; he had nothing whatever to put in its place. I had less sympathy than some of your Lordships with the plight of the Home Secretary, because it seemed to me that the Home Office must have anticipated at least the possibility that the decision by the Court of Appeal in A’s case would be reversed by the House of Lords. If they did anticipate that possibility, they did nothing about it except hope for the best. In the event, the 2005 Act which now comes up for renewal was pushed through the House of Commons without them having the proper opportunity to consider it or to consider the crucial part of the Bill, because it only finally took shape when it got to this House. We let it through after those days which we shall not forget on the promise—as I understood it—or undertaking that we would have another opportunity of considering control orders early in the next Session. We are still waiting. Instead, we spent much time on the 2006 Act, with the new offences of glorification of terrorism and the long argument about whether detention should be for 28 or for 90 days. But we have not had another opportunity to consider what we were promised—control orders. Here we are now, up against yet another deadline, just as we were two years ago. No doubt we will be given promises again by the Government in the way we were then. Some of us opposed control orders from the very start. It seemed to us that non-derogating control orders could easily be subject to abuse, despite the supervising powers of the judge under Section 3. It also seemed to us wrong in principle to use civil courts for imposing criminal sanctions in terrorist cases. The only precedent for that was ASBOs and one only has to think of it to see how far removed ASBOs are from the sorts of control orders with which we are concerned. What has happened? Have control orders been abused? Yes, they have. The standard form of control order devised by the Home Office came beforeMr Justice Sullivan in exactly the way described by the noble Lord, Lord Judd, in a test case. In his view, the restrictions on liberty were such as to amount to a deprivation of liberty contrary to Article 5 of the convention. He did not even regard it as a borderline case. He said it was obvious and his decision was upheld in the Court of Appeal. So the Belmarsh detainees have twice had their case upheld by the courts, on the grounds that what they were undergoing was contrary to the Human Rights Act. One can imagine what effect that would have on the communities from which they came. What about using the civil courts for imposing criminal sanctions? It is said, ““Oh no, this isn’t a criminal sanction at all—this is merely a preventive order””. But that was not how it seemed to Mr Justice Sullivan and it is not how it has seemed to quite a number of those subject to them, who apparently said that they would almost have preferred to have been back in Belmarsh. One would have thought that in relation to using this civil process, the Government might have learnt something from the past, but they have not. They have continued down the same primrose path. We now have before us the Serious Crime Bill, which uses exactly the same defective process—no longer in relation to terrorism but in relation to serious crime, and not even crime that is serious—in some cases it is not even crime at all, just people who are thought to be or suspected of being on the fringes of serious crime. It has been universally condemned by Liberty, Justice and, above all, in very measured words by the Select Committee on the Constitution. I shall read part of the last paragraph of its report: "““A broad question for the House is whether the use of civil orders in an attempt to prevent serious criminal activity is a step too far in the development of preventative orders. Whether or not the trend towards greater use of preventative civil orders is constitutionally legitimate (a matter on which we express doubt), we take the view that SCPOs represent an incursion into the liberty of the subject and constitute a form of punishment that cannot be justified in the absence of a criminal conviction””." Every word of that applies equally to the control orders that we are being asked to renew today. I entirely share the regret of the noble Lord, Lord Dholakia, that this order is being brought before us, and I shall support his amendment.