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

I, too, welcome the work of the JCHR on control orders. Indeed, dwelling on control orders has become one of its fixations; and, given their unique and extraordinary nature, quite rightly so for a Joint Committee on Human Rights. I therefore do not deprecate its work at all. However, the Government would look to the highest court in the land, the House of Lords, for our legal reference point, rather than the JCHR, however munificent it is. To tackle things backwards, I do not accept anything in new clauses 10 to 15 that challenges directly the conclusions of the most recent House of Lords judgment on the process and whether a fair trial or otherwise has been accorded under article 6. Nor do I accept the passing reference that my hon. Friend the Member for Hendon (Mr. Dismore) made to the dubious legality of control orders. We might not like control orders; they might sit in a twilight zone and they might be deeply unsatisfactory compared with persecution—I do apologise; I meant prosecution—which of course they are, but it is simply not good enough to say, ““We're against them.”” On one level, we are all against control orders. I start from the premise that the right hon. Member for Suffolk, Coastal (Mr. Gummer) set out of ““as much normality as possible””. In fact, in passing, I got into trouble last September for saying that the strongest lesson that we should have learned post-7/7 was that the rules of the game had not changed, and not the opposite. That was indicated by the Government of whom I was part at the time. I will therefore resist the blandishments of my hon. Friend the Member for Hendon on new clauses 10 to 15, however well intentioned the work of the Joint Committee was. We think that they are unnecessary. Given the choice between a report, however well intended, by the JCHR and a judgment by the House of Lords, we find ourselves, as we always are, of course, on the side of the Law Lords. There is much to commend in the broad thrust of my hon. Friend's new clauses 5, 6 and 7 on the renewal of control orders, as, from memory, I think I indicated last time. However, the formalisation that he seeks simply goes too far. There are reasons I do not think that it would be appropriate always to go for non-urgent control order certification by the DPP, as proposed by new clause 5. My hon. Friend will know that the Lords scrutinised the matter at length. They concluded that no changes to section 8 of the Prevention of Terrorism Act 2005 were required. The Lords considered that there were ““strong practical reasons”” for the current approach and that the changes would have the"““potential to emasculate what is clearly intended to be an effective procedure””." As I have already said, consultation arrangements are built into the legislation. As I think I said at the last annual review, should we make it clear that the processes for reviewing the potential for prosecution are all the sharper and clearer? Yes, we should. Should we look seriously into—and prove that we have looked seriously into—exit strategies for particular individuals? Yes, we should. Indeed, we have set out a range of ways in which we are seeking to do that. However, there are both principled and practical reasons for me to resist the substance of new clause 5, if not, in part, the spirit. First, new clause 5 could leave a public protection gap. A control order may be necessary to protect the public from the risk of terrorism posed by an individual, even though prosecution of that individual is possible. For example, an individual may be on bail, pending trial for a relatively minor offence and so the risk posed by the individual is much greater than the bail conditions that a judge would lawfully be able to impose on the individual, meaning that a control order is imposed in the interim to manage that risk. Secondly, new clause 5 could damage other investigations or prosecutions, or otherwise damage the public interest. My hon. Friend will be more than aware that, in addition to the purely evidential threshold, the Crown Prosecution Service is obliged to consider prosecution in the context of the wider public interest. Thirdly, and more practically, the proposal would be resource intensive and does not take account of operational realities. By the by, if that last point were the only one, the proposal would not be sufficient, given the seriousness of the deprivation of liberty. Taken together, all three points militate against accepting new clause 5. However, I accept the spirit, if not the intent, of the comments that my hon. Friend and the hon. and learned Member for Beaconsfield (Mr. Grieve) made in saying that we need to be as clear as possible that we have considered everyone's collective preference—that is, prosecution—in great detail and that, in addition, we have properly reviewed the prospects for a prosecution in future and an exit strategy. In part, that is what my hon. Friend is trying to get to in new clause 6. Again, however, new clause 6 as drafted, and probably—without imputing any malign intent—in intent, is inappropriate. It is important that we do not undermine the independent role of the CPS and the police. Very often—I say this merely in passing and no more—the very committee that should be more jealously guarding than any other the difference between the police, the CPS and the various arms of the state, and the interaction between the judiciary, the legislature and the Executive, couches some of its reports in terms that suggest that the Executive run the judiciary and legislature, which is not entirely appropriate. [Interruption.] I thought I heard my hon. Friend the Member for Foyle (Mark Durkan), but he points to the Liberal Democrat Benches—he must have thrown his voice. The independence of the CPS and the police is important. The CPS, not the Secretary of State, is responsible for considering whether a person should be charged with a criminal offence. Any shift in that responsibility could undermine its role. So the notion of the review group looking at the future prospects for prosecution is, given the interface between the police and the CPS, appropriate. I would say that the proposed new subsection (6A)(a), (b) and (c) are unnecessary. The statutory obligations of the 2005 Act, combined with court judgments, already deliver the intention behind the amending provisions, and the courts have confirmed that the Secretary of State must consult the police on the prospects of prosecution and do what she can to ensure that the police's consideration is meaningful by providing any relevant information available to them. We looked into the matter at the last review and we undertook to try to achieve that significantly better and in a clearer way, but it is not necessary to build it into the Bill in the way that my hon. Friend the Member for Hendon intends in new clause 6.