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

My Lords, like the noble and learned Lord, Lord Lloyd of Berwick, and, no doubt, a large number of other noble Lords, I remember all too vividly the final debate in your Lordships’ House on the Prevention of Terrorism Bill, which started at 11.30 am on 10 March 2005 and ended at 7.30 pm on 11 March. It was the longest debate in the history of your Lordships’ House. During that debate, we pressed, as we had at earlier stages of the Bill, for three things in particular: first, that there should be an irremovable sunset clause on the power to make control orders; secondly, that all control orders ought to be made by judges; and, thirdly, that the standard of proof for the making of control orders should be at least the balance of probabilities. On the sunset clause, a compromise was reached which we, with the Conservatives, accepted. The Government did not agree to the inclusion of a sunset clause, but they gave a very clear undertaking to introduce a new Bill on terrorism in a form which would make it possible to debate and to amend control order legislation and other provisions of existing legislation on terrorism. There was a proposed timetable by the Government that there should be a draft Bill and pre-legislative scrutiny in the autumn of 2005 and that a new Bill should be published in March 2006 which was expected to receive Royal Assent in about July 2006. That was clearly expressed in the speech of the noble and learned Lord the Lord Chancellor—Hansard, 10 March at cols. 1058-59. During the final stage of that debate, speaking from the Front Bench, I said in response to the Lord Chancellor that, "““if the Government renege on the undertakings or are guilty of unacceptable delay in implementing them, we would regard that as a justification for departing from the usual convention of your Lordships’ House that we do not reject secondary legislation””.—[Official Report, 10/3/05; col. 1060.]" The Government timetable for that undertaking was understandably derailed by the London bombings four months later. The Bill, which became the Terrorism Act 2006, was not the right place for a careful reconsideration of control orders and other provisions of earlier Acts, and did not receive any reconsideration. But the events of July 2005 did not discharge the Government from complying with their undertaking at a later date. I accept that because of the commitment of some terrorist groups to mass murder, it may be necessary to impose restrictions on the behaviour of those who are probably involved in the planning or preparation of terrorist acts, even if the evidence falls short of proof beyond reasonable doubt. I accept, too, that there may be a few cases where evidence exists which cannot be used, in particular because of the threat to the provider of that evidence. With reluctance, therefore, I agree with the views of my noble friend Lord Carlile of Berriew and would not seek to reject control orders altogether. But control orders can be and are being used to impose severe restrictions on defendants. The table on page 5 of my noble friend Lord Carlile’s most recent report shows this plainly, as do the decisions in the two recent cases known by the initials JJ and E. I recognise, of course, that those cases will be going to the Appellate Committee of your Lordships’ House. I therefore agree with the Joint Committee on Human Rights that if the Government really believe that control orders of this severity are necessary, they should be prepared to derogate from Article 5 and justify that derogation in Parliament and in the courts. One effect of derogation under the Prevention of Terrorism Act would be that control orders would have to be made by the courts on the basis of the balance of probabilities, whichwe have asked for all along and which we believe should apply to non-derogating as well as derogating orders. I believe, as I did two years ago, that it is absolutely wrong for the Home Secretary to have the power to impose severe restrictions by executive order, even if that order is subject to judicial review. I also believe that if evidence fails to show that on the balance of probabilities a defendant is involved in terrorism, the defendant should not be subject to a control order. If it is no more than a matter of suspicion, that may be a ground for continued surveillance, but not for a control order. To say that grounds for suspicion are enough for control orders will mean—and frankly this is beyond reasonable doubt—that innocent people will be subjected to control orders, with all the consequences that bodes for alienation of the communities from which they come. In February 2006, when these sections were last renewed, the Home Secretary refused to say that he would introduce any new legislation. That was clearly in breach of the undertaking given by the Lord Chancellor. There is no reason why we could not have had a new terrorism Bill in the present Session. This time the Government have not been quite so blatant about it, but they plainly have not committed themselves to fulfilling the undertaking given two years ago. I need refer only to the speech made in the debate on the order in the House of Commons on22 February by the Minister, Tony McNulty, who said: "““I cannot give an absolute assurance that within a year we will be looking at revised legislation, rather than a renewal … There may be an additional counter-terrorism Bill, as indicated in the Queen’s Speech, before the next renewal is due””.[Official Report, Commons, 22/2/07; col. 455.]" That is not an adequate reason for refusing to comply with the undertaking for yet another year. There is no reason why in the same Bill we cannot bothrevise existing legislation and introduce new provisions such as the removal of the ban on intercept evidence. The fact is that the Government are reneging on the undertaking given on 10 March 2005 which was central to the compromise that enabledthe Prevention of Terrorism Bill to go through that day. My noble friend Lord Dholakia has, for reasons that I fully understand and agree with, put down a non-fatal amendment rather than calling for the rejection of this order. However, the Government have reneged on an undertaking, and they must not be allowed to continue to get away with it.