Counter-Terrorism Bill

moved Amendment No. 131: 131: After Clause 88, insert the following new Clause— ““Control orders: obligation to give reasons After subsection (4) of section 2 of the Prevention of Terrorism Act 2005 (c. 2) insert— ““(4A) A non-derogating control order must contain as full as possible an explanation of why the Secretary of State considers that the grounds in section 2(1) above are made out.”””” The noble Lord said: As Members of the Committee will have seen, I am the only member present from the quartet of names put down to this and subsequent amendments—that is to say, myself, the noble Earl, Lord Onslow, the noble Baroness, Lady Stern, and the noble Lord, Lord Dubs. We are all members of the Joint Committee on Human Rights and each of them apologises for the fact that they cannot be here. It has the great disadvantage that the Committee can listen to only one speech rather than four speeches on these issues. I sympathise with the Committee, which will have to bear with that with all the fortitude that it can muster. The groupings are luxurious, in the sense that there is a series of groupings dealing with control orders. The first group is Amendments Nos. 131 and 137 to 141, and then there are separate groupings for Amendments Nos. 132 to 134, Amendments Nos. 135 and 136, and Amendment No. 142. This bundle of amendments dealing with control orders have all been tabled after the Joint Committee on Human Rights unanimously came to the conclusion that we should recommend a number of amendments to the control order regime which in our view are necessary to render it human rights compatible. We have explored this matter in previous reports. I do not need to go through any of them. Most recently, we dealt with it in our report of 8 October, beginning at paragraph 128. We noted with interest that the UN Human Rights Committee—that is to say, the quasi-judicial body that monitors countries’ records in complying with the International Covenant on Civil and Political Rights—in its concluding observations on the UK compliance with the covenant was concerned about the control order regime. That distinguished committee recommended, "““that the Government should ensure that the judicial procedure whereby the imposition of a control order can be challenged complies with the principle of equality of arms, and also that those subjected to control orders are promptly charged with a criminal offence. Both of these concerns are addressed in the amendments we recommend””." I speak to all the amendments in a single speech to sum up the matter up as briefly as we did in our latest report. First, on priority of prosecution, we said: "““We recommend that the Prevention of Terrorism Act 2005 should be amended to provide that, except in urgent cases, the Secretary of State may only make a control order where the DPP has certified that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence. We also recommend that the Secretary of State should be subject to an express statutory duty to review the possibility for prosecution on a regular basis, and an amendment to increase the transparency of decisions that prosecution is not possible””." That is very important because it underlines emphatically that priority should be given not to imposing control orders but to prosecuting for these most serious offences. Then under ““Deprivation of liberty””, we state: "““We recommend an amendment to clarify the approach to be taken by courts when deciding whether the effect of a control order is to deprive a person of their liberty in the Article 5 ECHR sense; and an amendment to impose a 12 hour maximum limit on daily curfews imposed by control orders to make it less likely that control orders will be in breach of””," the right to liberty in Article 5. Article 5 is of course the European habeas corpus provision, and it is very important that deprivations of liberty should be no more than necessary. Then, as regards due process, we recommend a number of amendments, all to be found in these groupings. The first is, "““to include express references to the right to a fair hearing for those subject to control orders in the Prevention of Terrorism Act 2005””." I will come back to that before I conclude. The second is, "““to create a statutory obligation for the Secretary of State to give reasons for””," making control orders. The third is, "““to require the Secretary of State to provide a summary of any material on which he intends to rely””." The fourth is, "““to allow a High Court judge to sanction communication between special advocates and controlled persons, on application by the special advocate””." The fifth is, "““to make clear that the standards of procedural protection are to be commensurate with the seriousness of the consequences for the controlee, including the standard of proof””." The sixth is, "““to allow special advocates to call expert witnesses””." Then, under ““Maximum duration of control orders””, we state: "““We recommend an amendment to set a statutory maximum duration of 2 years for a non-derogating control order””." I realise that much of this is technical at first sight. In reality, however, it is much more than mere lawyers’ stuff. It is about fundamental principles concerned with liberty and fairness in how we deal with those subjected to the draconian regime of control orders. Members of the Committee will see in the Marshalled List, starting at Amendment No. 131, useful headings explaining which amendments do the work that I have just tried to summarise. It is extremely important that these amendments are looked at carefully and, if necessary, after we have heard from the Minister, that we reflect further on what he says about them. I add one important point to what the Joint Committee has already explained carefully. There was last week a decision of the Court of Appeal about control orders and procedural fairness. The members of the Court of Appeal were divided, and the case is undoubtedly destined for the House of Lords. I therefore would not dream of saying anything about the merits of the case. However, matters were referred to in the dissenting speech of Lord Justice Sedley that are of sufficient general importance for me to mention them to the Committee. All three members of the Court of Appeal were concerned with a point of natural justice. What happens if a judge, looking at material that is not shown to the person subject to the control order, comes to the view that it is an absolutely obvious case without hearing anybody speak on behalf of that person? Is it fair that he or she should decide the matter then and there, and impose the order without giving the person concerned—the detainee—the opportunity of rebutting the case against him in some form? Lord Justice Sedley said: "““It is easy to conclude that there can be no answer to a case of which you have heard only one side. There can be few practising lawyers who have not had the satisfaction of resuming their seat in a state of hubristic satisfaction, having called a respectable witness to give apparently cast-iron evidence, only to see it reduced to wreckage by 10 minutes of well informed cross-examination, or convincingly explained away by the other side’s testimony. Some have appeared in cases in which everybody was sure of the defendant’s guilt, only for fresh evidence to emerge that makes it clear that they were wrong. As Mark Twain said, the ‘difference between reality and fiction is that fiction has to be credible’. In a system which recruits its judges from practitioners, judges need to carry this kind of sobering experience to the Bench. It reminds them that you cannot be sure of anything until all the evidence has been heard and, even then, you may be wrong””." A little later, Lord Justice Sedley continued: "““Judges are not proof against the human delusion that one has heard enough to be sure that there is no answer. They must guard themselves against it. The way in which the law ensures that they do so—not only the common law, but all the systems governed by the ECHR and many others besides—is to insist not that everything is to be known before judgment is given, but that everyone affected must have had a proper chance, which they may of course forfeit, to advance as much material as may help the tribunal in reaching a judicious conclusion””." He continued: "““It seems to me that a doctrine that an otherwise unfair hearing will become fair if the material which the party affected has had no opportunity to answer is sufficiently convincing is pragmatically unsustainable. It is also constitutionally subversive because, as it seems to me, it negates the judicial function which is crucial to the control order system””." After referring to the wartime case of Liversidge v Anderson and the famous dissent of Lord Atkin, he recalled Lord Denning’s comments in his memoirs about Regulation 18B, the work that Lord Denning did in Leeds when people were being detained under that regulation, and Lord Denning’s attack on the system. The judgment continued: "““There is nothing in the nature of a control order, with its potentially devastating effect on the life of the individual affected and his family, which calls for less than the maximum judicial oversight before it is confirmed. Nor, it seems to me, is the necessary rigour diluted by the fact that what has to be established is only that there are reasonable grounds to suspect involvement in terrorist-related activity. It is perfectly true that reasonable grounds to suspect something can coexist, at least in theory, with proof of the contrary, but facts have to be proved before they confound suspicion, and if a convincing explanation is offered that such facts are proved, the suspicion may cease to be reasonable””." I cannot do justice to the whole of that judgment or to the whole of the judgments in general, but I hope that the non-lawyer Members of the Committee as well as the lawyers get the drift, which is that it is extremely important to ensure that natural justice in some form really is done in practice in dealing with these control orders. We understand all the difficulties about disclosure of sensitive material and special advocates, but it is the unanimous view of the Joint Committee on Human Rights that these procedural safeguards are needed to bring the regime fully into line with our obligations under the European convention and the international covenant. As I say, I have spoken to all the relevant amendments. I beg to move.