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

My Lords, we of course recognise the gravity of the terrorist threat and share the Government’s concern about it. We also accept that, in circumstances in which it is impossible to prosecute or deport someone, some form of control order system will be necessary. That is why we have some hesitations about the wording of the amendment proposed by the noble Lord, Lord Dholakia, which seems to suggest that control orders can be replaced wholly by a system of prosecution. Nevertheless, we share entirely the spirit that lies behind it. Control orders are, essentially, instruments of executive power. They therefore pose dangers to a society based on the principles of democracy and the rule of law. Terrorism menaces those values as well; but responding to terrorism with legislation that is itself capable of undermining those values can, if it is not limited to what is absolutely essential and subject to regular review, achieve precisely the objects that the terrorists seek. That is the point made so well by the noble Lord, Lord Dear, when he drew your Lordships’ attention to the philosophy of Che Guevara. The noble and learned Lord, Lord Lloyd of Berwick, and many other noble Lords, reminded us of the events of early March 2005, when the Prevention of Terrorism Bill was being considered. Noble Lords who were involved will recall that this House was at loggerheads with another place on four or five issues, the most important of which was the sunset clause. In the end the deadlock was broken by the right honourable gentleman the then Home Secretary, who, as the noble Lord, Lord Goodhart, rightly reminded us, undertook to introduce legislation the following year which would give us ample opportunity to amend Sections 1 to 9 of the Prevention of Terrorism Act. As the noble Lord, Lord Goodhart, also reminded us, this undertaking in another place was confirmed by the noble and learned Lord the Lord Chancellor, who said: "““The new counter-terrorism Bill will be introduced into the Commons in spring 2006, and the renewal of this Bill's life will be in March 2006. Until approximately July 2006, we will have the passage of the new counter-terrorism Bill through Parliament, with Royal Assent—approximately—in July 2006. That will allow the process of reviewing this Bill and the passage of a vehicle in which any amendments can be made to go on at the same time””.—[Official Report, 10/3/05; col. 1059.]" Nothing could be less equivocal than that statement. As the noble Lord, Lord Goodhart, also reminded your Lordships, some months later the tragedy of the July Underground killings occurred and a new Terrorism Bill was introduced, which was inappropriate—as he accepted—as a vehicle for serious consideration of the control order regime under the Prevention of Terrorism Act. We accept that. However, the right honourable gentleman the then Home Secretary gave an additional reason in another place for delaying the measure. I apologise to your Lordships for quoting his observations. He said that, "““there are three very important pieces of work that are being done this year, which I want to be able to take into account before presenting legislation on counter-terrorism. The first is Lord Carlile’s review of the legislative definition of terrorism, which was promised during the passage of the Terrorism Bill and has been a significant part of the debate in both Houses of Parliament. ""The second is his report on the operation of the current Terrorism Bill, once passed, and in particular the measure to lengthen the period of detention without charge to 28 days, which has been the subject of great debate in both Houses. The third is the work that the Government are undertaking to find, if possible, a legal model that would provide the necessary safeguards to allow intercept material to be used as evidence … Each of those pieces of work has been of considerable importance to Members in all parts of this House during our debates, and in my view will demand attention before we decide the details of how to proceed on terrorism legislation””.—[Official Report, Commons, 2/2/06; col. 479.]" Here we find the then Home Secretary introducing entirely fresh considerations into the obligation that he unequivocally undertook a year earlier to bring legislation before your Lordships’ House in 2006. I should add, incidentally, that neither the honourable gentleman Mr McNulty nor the noble Baroness has said anything about the progress of these matters. As your Lordships have said, there is absolutely no sign whatever of any progress on a terrorism Bill in 2007 which would give your Lordships the opportunity to table amendments to Sections 1 to 9 of the Prevention of Terrorism Act. This would not be quite as serious were it not for the fact that the operation of the Bill since it came on to the statute book has demonstrated so many manifest inadequacies, inadequacies which your Lordships have discussed amply and most cogently this afternoon. I would like to emphasise two of them. The first concerns the issue of prosecution. In the 2005 debates we sought, with the support of the Liberal Democrats, to require the Director of Public Prosecutions to give an undertaking that prosecution was simply not possible before the control order regime was triggered. The Government resisted that, preferring instead that the chief police officer in the area where the control order was to be imposed would make a statement that, in all the circumstances, prosecution was not feasible. Now, the report of the noble Lord, Lord Carlile, among other sources of evidence, makes it quite clear that that system is not working. At paragraph 57 of his report, he says that, "““I have seen letters from chief officers of police in relation to each controlee certifying that there was no realistic prospect of prosecution. Little is given by way of reasons … I should … like to see more detail in those letters—for example, and if necessary in a closed version, an explanation of the sensitivity of material that could not be placed before a court of trial. If there is a thorough and continuing examination of whether a prosecution could be brought, the evidence of that examination remains unconvincing in some cases … In my view the decision whether to prosecute should be taken following detailed and documented consultation in every case between the Crown Prosecution Service … the police, the Security Service and the Home Office, on the basis of full consideration of the evidence and intelligence””." Moreover, as many of your Lordships have indicated, there was a judgment as recently as 16 February byMr Justice Beatson in the case of E v the Home Office underlining the concerns that the noble Lord, Lord Carlile, has expressed. One basis for his quashing of a control order was that the Home Secretary had failed to keep the prospects of prosecuting E under review. Mr Justice Beatson went on, at paragraph 292 of his judgment, to say that, "““a process which simply relied on the chief officer of the Police force or the Police officer present at the relevant meeting of CORG—" I pause there to explain that that is a three-monthly meeting of police officers to consider the control orders that have been made, "““to bring matters forward is insufficient””." So, from both an independent reviewer and a judge we find the inadequacy that we in this House perceived, before the Bill was passed, emphasised in its operation. Your Lordships will be wholly familiar with the other points that I would make about prosecution. We simply do not understand why the Government are not able to allow intercept evidence in criminal trials. After all, they use bugging evidence and intercept evidence from other regimes. Apart from Ireland, I am unaware of any country that refuses to use intercept evidence. The Attorney-General, speaking in the United States, is on record as saying that it is desirable to use intercept evidence, the Director of Public Prosecutions has added his name to that, and the Home Secretary said last year in another place that the Home Office is actively considering this matter. What more does the Home Office want? Why is this matter being delayed? Allowing intercept evidence to be used could solve nearly all the problems that we have with control orders. The other matter to which I wish to draw your Lordships’ attention is the question of Section 3(10), which has, again, been extremely well canvassed this afternoon. That section permits review by the High Court of non-derogating orders. We, with the full support of the Liberal party—the noble Lord, Lord Goodhart, spoke with great eloquence on this issue—believed that a system of review was inadequate and that, as in the case of Section 4 on the derogating orders, there should be full consideration by the High Court on merits. Along comes the case to which the noble Baroness herself, and many other noble Lords, referred—the Secretary of State for the Home Department v MB and Others. Your Lordships will recall that Mr Justice Sullivan quashed five control orders on the grounds that they breached Article 5 of the convention. Those orders should have been imposed, if at all, under Section 4 of the Prevention of Terrorism Act. Mr Justice Sullivan was in no doubt whatever that the control orders breached Article 5, and that was wholly confirmed by the Court of Appeal on appeal by the Home Office. Both courts were clear that it was not just a marginal case; it was absolutely clear-cut that those control orders were in breach. But there was another issue—whether thereview provision in Section 3(10) was compatible with Article 6 of the convention on human rights. Mr Justice Sullivan had found a clear case of incompatibility. The Court of Appeal was much more nuanced in its approach; it said that, by applying Section 3 of the Human Rights Act 1998, it was possible to interpret Section 3(10) of the Prevention of Terrorism Act so that it conformed with Article 6, provided that that interpretation gave ample grounds to the court to consider the control orders. That was very well illustrated by the noble and learned Lord the Lord Chief Justice. In paragraph 58 of his judgment, he said that, "““when reviewing a decision by the Secretary of State to make a control order, the court must make up its own mind as to whether there are reasonable grounds for the necessary suspicion””." In paragraph 60, he continued: "““Whether there are reasonable grounds for suspicion is an objective question of fact. We cannot see how the court can review the decision of the Secretary of State without itself deciding whether the facts relied upon by the Secretary of State amount to reasonable grounds for suspecting that the subject of the control order is or has been involved in terrorism-related activity””." He then stated in paragraph 63: "““Whether it is necessary to impose any particular obligation on an individual in order to protect the public from the risk of terrorism involves the customary test of proportionality””." In paragraph 64 he stated: "““The Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of the terrorist suspect and, for this reason, a degree of deference must be paid to the decisions taken by the Secretary of State””." Finally, in paragraph 65 he said: "““Notwithstanding such deference there will be scope for the court to give intense scrutiny to the necessity for each of the obligations imposed on an individual under a control order, and it must do so. The exercise has something in common with the familiar one of fixing conditions of bail. Some obligations may be particularly onerous or intrusive and, in such cases, thecourt should explore alternative means of achieving the same result””." Noble Lords will forgive me if I misunderstood, but I had the impression that the noble Baroness sought to convey to your Lordships that reversing the decision of Mr Justice Sullivan that Section 3(10) of the Prevention of Terrorism Act was incompatible with Article 6 of the Human Rights Act was in some way a victory for the Government. In the light of what the noble and learned Lord the Lord Chief Justice said, that is plainly not true. In the proceedings in the Court of Appeal, counsel for the Home Office opposed this approach to Section 3(10) and, indeed, is appealing against it to the House of Lords. So I regard the decision by the Court of Appeal as entirely vindicating the approach that your Lordships took to these matters in March 2005; and, mercifully, it will lift some of the burden off our shoulders when this legislation finally returns to us for consideration. The history of these measures since March 2005 provides ample evidence of the absolute necessity for Parliament to be in a position to review the 2005 Act as soon as possible. I wholly agreed with the noble Lord, Lord Goodhart, when he said that he regarded the constitutional convention about Orders in Council not to apply in the circumstances of this woeful story. Although no amendment has been tabled seeking to render the order nugatory, the Government should be in no doubt that next time there will be no circumstances in which we will be prepared to renew this order.