Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2008

My Lords, we last debated this matter at considerably greater length on 5 March 2007. We acknowledge of course the gravity of the terrorist threat and share the Government’s concerns about it. We also take the view that, in circumstances in which it is impossible to prosecute or deport someone, some form of control order system will be necessary. However, control orders are instruments of Executive power and consequently 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. It is worth reminding ourselves of the history of these orders. In early March 2005, when the Prevention of Terrorism Bill was being considered, those 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 a sunset clause. In the end the deadlock was broken by the Home Secretary, who 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. Not long after that debate, in July 2005, we had the awful tragedy of London Underground suicide bombings. The Government speedily drafted and introduced a new terrorism Bill, and all noble Lords around the House acknowledged that because of the importance of swiftly getting that Bill on the statute book, it was not the appropriate context in which to reconsider Sections 1 to 9 of the 2005 Act. However, the Home Secretary gave additional reasons for not making the new Bill a vehicle for reconsideration of control orders. The first of these was the absence of the report of the noble Lord, Lord Carlile. The second was the consideration at the time by the noble Lord, Lord Carlile, of a separate issue, which was the legislative definition of terrorism and whether it should be amended. The third reason was that it was the beginning of the Government’s own departmental work on intercept evidence, seeking a way to allow such evidence to be part of the prosecution’s armoury. So the Home Secretary was moving away from the absolute commitment he had given the House in March 2005. The following year, when the noble and learned Baroness, Lady Scotland of Asthal, was in charge of Home Office matters in your Lordships’ House, a further reason was given for not offering the House an early opportunity to reconsider Clauses 1 to 9, and that was a series of cases that had reached the Court of Appeal but not yet the House of Lords. I refer here to what I can encapsulate as the JJ case, the E case and the MB case. We now have the report of the noble Lord, Lord Carlile, and he has given his view on the new legislative definition of terrorism; a committee of Privy Counsellors has been set up and is guardedly optimistic about the possibilities of using intercept evidence in future prosecutions; and the House of Lords has taken a view on these three cases. In those circumstances, there is absolutely no reason whatever why when the Counter-Terrorism Bill reaches your Lordships’ House we should not have a full opportunity to consider in detail and in depth Clauses 1 to 9 of the Prevention of Terrorism Act. Indeed, I believe the Government are taking their opportunities in another place to introduce certain amendments, albeit limited, as the noble Baroness said, to make some changes. I have been given private undertakings by the Leader of the House that we will have a full opportunity to consider all those clauses in the forthcoming Counter-Terrorism Bill, but I would be greatly indebted to the noble Lord, Lord West, if he will confirm that to your Lordships’ House when he responds to the debate. I thought the noble Lord’s conclusions about their Lordships’ Appellate Committee’s judgments were somewhat sanguine. As far as JJ is concerned, he fastened on to the speech of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, when he hazarded that, perhaps in certain circumstances, 16 hours would not fall foul of Article 5 of the convention. That remark has to be seen, as I am sure the noble and learned Lord, Lord Brown of Eaton-under-Heywood, would wish, in context. The noble and learned Lord, Lord Bingham, said in that case that one cannot simply look at the absolute number of hours and reach a conclusion as to whether or not it breached Article 5; one had to look at all the components of the control order. So it is quite possible that 16 hours with some particularly onerous other ingredients could push the 16 hours over into a breach of Article 5. The Home Office is being extremely optimistic if it simply thinks it can put 16 hours into every single control order from now on. In any case, the noble and learned Lord, Lord Brown of Eaton-under-Heywood may not be sitting on the next House of Lords Appellate Committee case on this, so I urge caution on the noble Lord. As far as MB is concerned, it is true that the House of Lords was not tempted by the suggestion that there should be a declaration of incompatibility with respect to Article 6; but it did say that Section 3(10) of the Prevention of Terrorism Act 2005 would be compatible with the convention only if you read into it Article 6 of the convention. That is a very substantial alteration of the position the Government asserted during the debates in your Lordships’ House. It is quite clear that the court will now ascribe to itself two very important powers which the Government sought energetically to deprive it of when the legislation was initially introduced. The House of Lords says that the court, when considering whether there are grounds for a reasonable suspicion, was entitled to consider that as a matter of objective fact and that the courts should therefore look closely at the considerations that the Home Office took into account to decide whether they were reasonable. Secondly, the component parts of the control order and the extent to which they were excessively onerous was also a matter that the courts should take into account, although there they would give the Home Office a considerable margin of appreciation because the Home Office has at its disposal a great deal of intelligence information that is, for obvious reasons, not available to the court. I come now to the final judgment in E. I agree with a number of noble Lords who said that the most important thing is to prosecute these cases rather than to subject individuals to control orders. Here, the Joint Committee on Human Rights report is particularly powerful and convincing. This was again a matter of serious dispute in March 2007. The conclusion of the House of Lords judgment in E is that it is implicit in the scheme of the 2005 Act that it is the Secretary of State’s duty to keep the possibility of prosecution under continuing review. The House of Lords endorsed the Court of Appeal’s approach. The Court of Appeal said: "““Once it is accepted that there is a continuing duty to review … it is implicit in that duty that the Secretary of State must do what he reasonably can to ensure that the continuing review is meaningful … it was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution"." It went on to say that that duty ought to be expressed in statute. I am not convinced by anything that I have heard in the past three years, either in the report of the noble Lord, Lord Carlile, or from the Government on the Floor of this House, that that is what is happening. The Government give a certain amount of airtime to the desirability of prosecution, but operationally they are not seeking to make that a reality. We know that, quite apart from anything else, in practical terms quite a lot of people have just absconded from control orders. It is much more difficult to abscond from prison. That is the safest place for these people who threaten our security. I hope that the Minister will pay particular attention to those issues. It is vital that we can review all these matters when the Counter-Terrorism Bill comes to your Lordships’ House. I would like the Minister to confirm that that is what we will be able to do.