Counter-Terrorism Bill (Programme) (No. 2)

This group of new clauses and amendments relates to control orders. When we debated the renewal order in February, the control order regime was subject to considerable criticism. I agree with the Government that the control order regime is the second best option after prosecution. If the control order regime is to stay, we must review the safeguards and ensure that it is compatible with human rights law. We are discussing restrictions on liberty without a criminal charge or trial. New clauses 5 to 7 refer to the importance of prosecution; new clause 8 relates to the nature of control orders themselves; new clauses 10 to 15 concern due process; and new clause 16 relates to an exit strategy. In the case of E, the House of Lords said that there was an implicit duty on the Government to keep the possibility of prosecution under review. Baroness Hale said that control orders were second best and that the public were far better protected, because even while criminal proceedings are pending, the controlled person is subject to serious restrictions on the basis of mere suspicion. I welcome the introduction of the control order review groups' quarterly meetings to consider whether prosecution can take place, but not one controllee has ever been prosecuted. New clause 5 would put an extra check on whether prosecution was possible by requiring the Director of Public Prosecutions to certify that there was no reasonable prospect of prosecution before an order could be made. We know that the DPP is quite important in such matters from the debate that we are likely to have tomorrow. New clause 6 would make statutory the duty to keep matters under review. It is current practice; the Government agreed recently with the control order review group. In the case of Secretary of State for the Home Department v. E, they argued that they needed to have only periodic inquiries into whether the matter should go forward, so we need to ensure that the provision is included in the legislation. It is also important to ensure that the police see all the material available to the Home Secretary. They may well be able to turn some of what is currently inadmissible into admissible evidence; they have had some success in doing so in other terrorist cases. Lord Carlile, in his third report on control orders, made the point that the continuing investigation of current controllees could provide evidence for prosecution and conviction, so the new clause would give effect to his recommendation, too. New clause 7 would provide for more transparency in the process and, again, would give effect to a recommendation from Lord Carlile in his third report, when he said that more detail about the reasons why there were no reasonable prospects of prosecution should be given by the chief of police to the Home Secretary. The new clause would also give effect to recommendations from Lord Carlile's first report in 2006, when he said that the reasons should be disclosed to the controllee unless it would be contrary to the public interest to do so. The new clauses would give effect to his recommendations in those two reports. New clauses 8 and 9 are about the nature of the control order and whether it amounts to a deprivation of liberty—against article 5 of the European convention on human rights. If it does, it should become a derogating control order. That would happen only if the courts authorised it. Whether the order amounts to a deprivation of liberty is a question of not just the length of the control order, in terms of the number of hours per day, but the conditions imposed in combination. In the case of Guzzardi v. Italy, the European Court of Human Rights found that when combined with other restrictions, nine hours maximum amounted to a deprivation of liberty. We must have a more nuanced approach than simply stipulating the number of hours and a curfew. Lord Bingham in the case of the Secretary of State for the Home Department v. JJ said that one should take account of the individual's whole situation, and that it was inappropriate to draw a sharp distinction between a period of confinement that would amount to a deprivation of liberty and one that would not. New clause 8 would make that point in the Bill, looking at the overall factors that must be taken into account. The period of daily confinement is, of course, important in the overall assessment, and new clause 9 therefore seeks to limit the daily length to a maximum of 12 hours. There is no guarantee that it would be compliant with article 5. After previous court cases, the Government reduced some periods to 12 hours. In fact, there is little evidence of any significant damage to public protection in reducing control orders to 12 hours. If there were any such evidence, the Government should and would have produced it by now. The Government extrapolate that 16 hours is permissible from the judgment of Lord Brown of Eaton-under-Heywood in the JJ case. That is a rather strange extrapolation, because he actually said:"““It may be, indeed, that 16 hours itself is too long”” ," but that he wanted to leave it to the Strasbourg Court to decide. That is hardly a ringing endorsement of the Government's view that 16 hours is permissible. We have no clear judicial guidance and Parliament therefore ought to form its own view, which my new clause would enable it to do. The most important issue that we must face is the lack of due process. New clauses 10 and 15 are based on the recommendations that we put forward in our 10th counter-terrorism report in April. They are rooted in the evidence that we received from the special advocates who deal with such cases. I hope that my right hon. Friend the Minister will meet them, as he has promised to do, to discuss their concerns further. Once a controllee enters the twilight zone of dubious legality, he faces restrictions on where he can go and when, who he can meet, his use of his phone and computer and his transfer of money and goods. He also faces requirements to report to the police, to allow the police into his home without a further warrant and many other restrictions. The controllee enters a Kafkaesque world in which, like those unfortunates who were brought before Henry VIII's Star Chamber, he is not told of the case against him, is not allowed to discuss his case with his special advocate, sees the case against him decided on the ground of mere reasonable suspicion and, at the end of the process, is not given the reasons why the order against him was made. On that basis, people have been subjected to controls for three years so far, and remain so indefinitely—in some cases on top of three years' previous detention without trial in Belmarsh. We know that the security services can make mistakes, not only in the de Menezes case but in the Lotfi Raissi case which has had such a serious impact on an innocent man for the rest of his life. It is essential that safeguards are brought into play so as to have at least some element of due process in the control order regime if they are to continue to be used to protect the public. The Government say that the House of Lords approved their procedures in the MB case, but some of our criticisms were upheld—for example, on the entirely undisclosed nature of the prosecution case. The Government have ignored the evidence given to us by the special advocates, and the guidance on MB is somewhat confusing. Indeed, another case is going to the Court of Appeal next month. This area of the law desperately needs clarification. I accept that some of the points that we have put forward are not required in relation to MB, but they are needed to achieve a modicum of fairness. New clause 10 would avoid the need for mental gymnastics by ensuring that the controllee would be entitled to a fair hearing. There is a lack of certainty in the Bill that needs correction. New clause 11 would require an explanation to be given to the controllee of why the grounds for the control order were made out. New clause 12 would require the controllee at least to be aware of a summary of the material—the gist—which fairness requires him to be able to comment on. New clause 13 would allow the special advocate to apply to the court for authority to discuss aspects of the case with the controllee. That would be a safeguard from the security services' point of view. It would ensure that there was an independent assessment so that the special advocate did not disclose matters that he should not disclose, but at the same time provide a degree of fairness. New clause 14 would provide a procedural protection for what was happening on a scale concomitant with the seriousness of the conditions to be imposed. New clause 15 would allow a rebuttal of expert evidence to be brought. Together, these new clauses, which are based on recommendations from the Joint Committee on Human Rights and rooted in the evidence that we received from the special advocates, would provide a greater degree of legal certainty and procedural fairness, which are essential if the control order regime is to continue into the future. We should also consider the duration of control orders. Seven of the 15 people involved have been under control orders for more than two years, and two for more than three years, on top of three years' detention in Belmarsh that was later found to be unlawful. Not one of them has ever been prosecuted. Nine controllees were serving deportation notices and six have been deported. One control order has been revoked and two were not renewed. Lord Carlile drew our attention to the fact that after that length of time such people are of somewhat questionable utility to terrorist groups, which prefer to operate with ““clean skins””, not those who are so clearly compromised. The restrictions on freedom may not be Guantanamo Bay conditions, but they certainly provide a gilded cage in which people are confined indefinitely, and we therefore need to see an exit strategy. My new clause suggests a sunset clause of a maximum of two years on a control order unless there are exceptional circumstances. There is no clear human rights argument as to what should be the maximum length of time, but that chimes with Lord Carlile's recommendation of a maximum two-year presumption unless there is a genuinely exceptional need. It is a question for Parliament to debate and decide. Control orders are definitely a second best option to prosecution. We have to ensure that they are not unduly oppressive, that they are subject to due process and procedural fairness, and that there is ultimately and end to them in sight.