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

My Lords, I hope to be brief. I am a member of the Joint Committee on Human Rights, and I support all the recommendations made in the report published yesterday, but I do not want to talk about any of those here. I have four other points. I was one of the rebels on this side of the House two years ago in the fraught circumstances that the noble and learned Lord, Lord Lloyd, talked about. My objection to the Bill then was the power we gave to the Executive to impose these orders without what seemed like appropriate judicial oversight. It should have been put the other way round; if orders are to be imposed, they should be imposed by a judge. I still think that is absolutely the right approach, but that position was lost in Parliament in those fraught discussions. However, I am pleased that over the past two years the courts seem to have been flexing their muscles a bit more in terms of judicial review. I had one or two tussles with my noble and learned friend Lord Falconer of Thoroton over whether judicial review would include proportionality, a kind of principle of judicial review that has developed through the importation of human rights legislation. Perhaps without it being said so too explicitly, we seem to be moving towards a situation where the courts are prepared to review control orders by appealing to the principle of proportionality, which is all to the good. Given that we are in the wrong place, I am encouraged by the role played by the judges and hope they will continue to play that role in the future. I have two or three specific questions for my noble friend which reflect a genuine degree of puzzlement. Given that this has been one of my main bones of contention with the Government in my 15 years in this House, I obviously try to keep up with issues relating to control orders. First, when we were in the middle of those fraught debates in the post-Belmarsh situation, the argument was that this legislation had to be produced in a great hurry. Indeed, because of that, as the noble and learned Lord, Lord Lloyd of Berwick, said, the Bill hardly left the House of Commons in a fit state to be debated. Yet few people are subject to control orders. According to Dame Eliza Manningham-Buller and others who have spoken about this—I am certainly in no position whatever to second-guess their estimates—up to 2,000 people are thought to be engaged in terrorist-related activities. If control orders are supposedly an indispensable means of controlling terrorist activity, why on earth are so few people on them if so many are involved in such activities? One answer might be because the imposition and monitoring of control orders are labour-intensive and perhaps more people might be on them if they were not so expensive. I hope very much that that is not the case because it would be quite wrong for financial considerations of that sort to play a major role, especially if they are as indispensable as the Government argue. I am genuinely puzzled. If so many people are engaged in terrorism, why are so few people subject to control orders? It is incompatible with the rather frenzied atmosphere that led to the passing of the 2005 Act in the first place. My second point, which is not entirely unrelated to the first, is about the number of people absconding. In the final debate on the 2005 Act, my noble friend may remember that I asked who would monitor and impose the orders—the police or private contractors. I got a slightly dusty answer, and the noble Earl, Lord Ferrers, subsequently commented on the same point. As I understood it, the answer was that there may be a role for private contractors but it would be a subservient, rather peripheral role. The people who absconded were on control orders, so one might think that they were a great danger to the country. Were they being monitored by private security companies or the police? It would be quite wrong for something that is supposed to be so important to deterring terrorism to be done by private contractors at such a hands-on point. We deserve clarity about who is responsible vis-à-vis the three people who have absconded or evaded control orders. Is the Minister content with the current level of enforcement? Finally, I come to the point made by the noble Lord, Lord Lester, towards the end of his speech, which is in the JCHR report. We should not be too worked up by two of those who have absconded because it did not look as though they were planning terrorist activities in the UK. That must raise the question of the rationale for these control orders, given that that was what they were supposed to be controlling. I am still in need of convincing about this regime. The judiciary is now playing a vital role in supervising more fully than perhaps was obvious from the Bill the imposition of these things. However, there are real questions still to be answered by the Government.