Counter-Terrorism Bill

The noble Lord, Lord Lester of Herne Hill, has moved Amendment No. 131 and spoken to all the amendments in the next four groups, which is a perfectly logical approach for him to have taken, given that the substance of what he said forms part of a jurisprudence spread over three cases earlier in the year. I hope that the Minister will forgive me if I follow the noble Lord, Lord Lester, in my approach. Rather than taking each line blow by blow, I shall deal with all the issues which fall within the next four groups of amendments. I think it is fair to say that the landscape of control orders has been transformed by three cases this year, all of which have been decided by your Lordships’ Appellate Committee. These are: JJ and others; MB and E. The question for the Government is, to what extent, if any, they ought to amend the 2005 legislation to incorporate this new jurisprudence. There is no doubt that the Joint Committee on Human Rights, admirably represented today by the noble Lord, Lord Lester of Herne Hill, feels strongly that the Act should be amended. With some qualifications, that is also our view. The noble Lord, Lord Lester of Herne Hill, began by taking us to the issues which were raised in the case of E, which concerned what he rightly called the priority of prosecution. This is an area in which the Act is particularly weak. It requires the Secretary of State to refer himself to the police, but beyond that there is no formal set of obligations at each stage of the control order procedure to require the political arm of the constitution to communicate with those responsible for bringing prosecutions. The point was very well put by the noble and learned Baroness, Lady Hale, in her speech in the case of E in your Lordships’ House, in which she said that, "““a control order must always be seen as ‘second best’. From the point of view of the authorities, it leaves at liberty a person whom they reasonably believe to be involved in terrorism and consider a risk for the future. The public is far better protected, even while criminal proceedings are pending, let alone if they result in a conviction. From the point of view of the controlled person, serious restrictions are imposed upon his freedom of action on the basis of mere suspicion rather than actual guilt. From both points of view, prosecution should be the preferred course””." In our view, that of the noble Lord, Lord Lester, and that of the Joint Committee on Human Rights, the safeguards to ensure that prosecution comes first are inadequately represented in the Act. What is required is well set out in paragraphs 66 to 70 of the Joint Committee on Human Rights report, HL Paper 57/HC356. First, the Secretary of State should be required to get a statement from the Director of Public Prosecutions to say in terms that a prosecution is not possible in the particular circumstances of the proposed control order, and that the matter should be kept under continuing review. Once again, the Secretary of State was found at fault in the case of E for, once a control order had been imposed, not keeping the possibility of prosecution thereafter under constant review. The report quoted with approval a statement from the Court of Appeal: "““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””." No doubt the Minister will recall that in his second report the noble Lord, Lord Carlile of Berriew, particularly emphasised the inadequacy of the process of continuing review. Secondly, there is the question of procedures, to which the noble Lord, Lord Lester, devoted a considerable part of his speech. This matter was dealt with in some detail in the Appellate Committee’s judgment in MB. I recall the noble and learned Baroness the Attorney-General standing at the government Dispatch Box—it must have been in March—when the last statutory instrument came up for renewal, saying that it was very important to note that the legislation had not been found to be in breach of the European Convention on Human Rights. It was found not to be in breach only by a vigorous reading-in under the interpretation section of the Human Rights Act 1998. Otherwise, the Appellate Committee said in terms that the Act would have been in breach, in which case it would have had to make a declaration of incompatibility. The point is very well dealt with in paragraph 53 of the JCHR report, which states: "““The House of Lords in MB, however, recently held, by a majority of four to one, that the procedures contained in the PTA 2005 and the Rules of Court made under it would not be compatible with the right to a fair hearing to the extent that they could lead to the upholding of a control order where the essence of the case against the controlled person remained entirely undisclosed to him or her. In their opinion, the statutory regime could only be made compatible with the right to a fair hearing by using s. 3 of ""the Human Rights Act to read into the legislation additional words guaranteeing the right of the controlled person to a fair hearing””." Surely, the Government must recognise that this is an extremely unsatisfactory situation for them to find themselves in. Simply to leave the law at that would not provide the precision necessary, nor the fairness to which every citizen of this country should be entitled. It is simply not sufficient to leave the matter to be wholly dependent upon the interpretation by the House of Lords by means of Section 3(1) of the Human Rights Act 1998. Here we are also looking to the Government to provide an amendment which, if not precisely in terms of that tabled in the Marshalled List, approximates to the intention of the amendment. The third issue dealt with by this triumvirate of cases, including JJ and others, is the question of identifying the borderline between restriction and deprivation of liberty. I freely accept that casting an amendment to deal with that problem is less easy than in the case of the other two, because although your Lordships’ House found that 18 hours a day crossed the borderline, it is really not possible to assess the compliance of a control order unless one looks at all the circumstances of the case, of which the length of the curfew is only one. I note that Amendment No. 136 contains a figure of 12 hours; there is some merit in approaching the matter in those terms; but we on the opposition Benches are more hesitant about being specific about hours in such amendments than perhaps is the Joint Committee. I urge the Government not simply to hold their ground on this, but to get to grips with what was decided in those cases and reformulate the various provisions in the 2005 Act to make them not only more human rights-compliant in terms of the convention and the Act itself, but more generally to be just fair, as the noble Lord, Lord Lester, said. Obviously, the Act relates to very serious circumstances involving terrorist threats to the security of the country; but, nevertheless, even those whom we suspect of terrorism deserve the protections of our constitution that are appropriate to the circumstances. We do not believe that those protections are in the Act at the moment and the approach of the Joint Committee on Human Rights is correct.