Counter-Terrorism Bill

I have just got into my opening remarks. As I said, I have a highly complex answer here and I went through it in detail before with those in the Box. I do not want to get into toing and froing because use of language is clearly extremely important, as the noble Baroness has just shown. Those people are not charged in the formal sense, although I hope that people understood what I was referring to. That highlights exactly why I have to follow very precisely what is written here. Some of these issues are fine points of law. If I may run through my preliminary remarks and then go through each amendment, at the end of that, I will be very happy to consider and debate particular points. There is ongoing litigation about what the judgment to which I referred means in practice, but that is about practical implementation. It does not mean that further substantive changes of principle are required. Noble Lords will be aware that in last week’s Court of Appeal judgment on the right to a fair trial in a number of different cases, the majority view essentially supported the Government’s position. Amendment No. 131 obliges the Secretary of State to give as full as possible an explanation of the reasons why the individual is reasonably suspected of involvement in terrorism-related activity and why a control order is necessary to protect the public from a risk of terrorism. Currently, a control order always explains that the Government suspect that the individual is or has been involved in terrorism-related activity, and that the control order is necessary to protect the public from a risk of terrorism. After service of a control order, the individual is provided with the open case against him. Even before the Law Lords’ judgment of October 2007, the starting point was that the open case must contain as much material as possible, subject only to legitimate public interest concerns. Special advocates can and do make submissions that further information should be disclosed to the individual. I should add that, subject to public interest and Article 6 considerations, the court rules underlying control order proceedings require disclosure of all relevant material. That effectively goes beyond providing reasons to providing underlying material. That includes providing any material that undermines the Secretary of State’s case or assists the controlees’ case, as well as material helpful to the Secretary of State. Moreover, the duty to disclose relevant material is a continuous obligation that remains in place throughout the hearings. Thus, the individual is already given as full an explanation as possible of the reasons for the imposition of a control order. Any requirement to place as full as possible reasons in the control order is an unnecessary bureaucratic duplication, given that existing material—in particular, the open case—already fulfils that function. In Article 6 terms, following the MB judgment, as part of the review of each control order, the High Court must consider compatibility with Article 6. A control order hearing could therefore never conclude in a way incompatible with Article 6, including in relation to disclosure of reasons for the making of the control order. To the extent that the amendment simply requires that existing practice continues, it is entirely nugatory. To the extent that the amendment is interpreted as requiring something beyond existing practice, it would be highly damaging to the public interest, reducing the Secretary of State’s ability to protect the public from terrorism. That is because the Secretary of State already puts in open court what she can. Anything further would require providing an explanation that would include disclosure of sensitive material against the public interest. In such cases, the Secretary of State, taking the advice of the agencies, would not agree to provide the material, and the case would have to be dropped. Amendment No. 137 amends the 2005 Act to reflect the read down by the Law Lords in MB. Subsections (2) and (3) add in the exact words already effectively added to the Act by the MB judgment and so are redundant. Subsection (1) was not part of the read down by the House of Lords and is not necessary. As a result of the read down, a judge will not be put in a position where he has to uphold a control order where the proceedings have not been compatible with Article 6. If the amendment is intended to go beyond the MB judgment, making it the court’s job to quash the order without first putting the Secretary of State to her election, the amendment would be undesirable as damaging to the public interest, not merely unnecessary. Subsection (4) reflects the wording included within the asset-freezing provisions of the Bill in Clause 71(6). This is also unnecessary. This provision in Clause 71(6) is included in the asset-freezing clauses instead of the words of the MB read down to give effect to the MB judgment in legislation to which the judgment did not directly apply but which makes provision for a comparable situation. There is no need to include the wording of Clause 71(6) in the 2005 Act on top of the MB read down, which already makes the position clear for the 2005 Act. That would be unnecessary duplication. The amendment highlights one element of the Government’s response that is common to a number of amendments in the group, and to amendments in other groupings. As noble Lords will be well aware, we operate under a common law system. It is widely accepted that public authorities—among others—are bound not just by statute, but by case law. There is therefore no need to legislate to reflect judgments handed down by the courts. Indeed—and on a related point—as noble Lords will also know, it is considered bad practice to legislate unnecessarily. There is an additional reason why this amendment is unnecessary. It undermines the purpose of Section 3 of Human Rights Act. There would have been no need for the Government or Parliament to make provision for the courts to read down legislation if the intention had been that any adverse court judgment on human rights would require legislative amendment. As an aside, even if one were minded to legislate—which, as I have already made clear, the Government are not—it would be odd to legislate at this stage, when there is ongoing litigation on the point. The Court of Appeal cases are likely to be considered by the Lords. Lastly, in general terms, legislating for a read down also carries an unnecessary risk of unintended consequences, because the courts would then be required to interpret what was meant by the new legislation and operate to that. That is different from interpreting the existing Act as read down, and could lead to different outcomes. Although that outcome may not be likely in this context, it cannot be ruled out. Moreover, if it happened there would in effect be two systems in operation: one for new controlees, and one for existing controlees. The amendment is therefore not only unnecessary but potentially damaging to the public interest. It is simply wrong to suggest that legislating would automatically clarify the issue further. Amendment No. 138 would oblige the Secretary of State to provide a gist of all material to the controlee. This would be unnecessary and potentially damaging to the public interest for reasons that are similar to our objections to Amendment No. 131. As I explained, the individual is given as much material as possible, subject only to legitimate public interest concerns. If material could not be provided, consideration must be given to whether a summary of that material can be provided. The court, not the Secretary of State, determines whether material or a summary should be withheld. If the court considers that disclosure of material would be contrary to the public interest but that such material must in any event be disclosed in order for the controlee to have a sufficient measure of procedural protection, the Secretary of State will be put to her election. This means that the Secretary of State is given a choice whether to disclose the information or to withdraw it from the case. If the latter, the case proceeds without that material. Either way, the case continues in a manner compliant with Article 6. If the material is withdrawn from the case, the judge must consider whether it was so crucial to the Secretary of State’s case of reasonable suspicion or necessity that, in the absence of such evidence, the decision on the order is flawed and so should be quashed. Crucially, however, the final decision on whether to use the material remains with the Secretary of State. The rules governing control order proceedings are designed to ensure that the public interest is properly safeguarded. Introducing a requirement always to provide a summary is not appropriate. It would expose sensitive material, meaning that the Secretary of State, taking the advice of the agencies, would not agree to provide the material or reasons and the case would have to be dropped, thus exposing the public to an unnecessary risk of terrorism. Thus the judgment in MB did not require the provision of a gist to be necessary in every case to provide individuals with a substantial measure of procedural justice, despite this being the controlees’ explicit submission in the Law Lords hearing. Although litigation on this issue is ongoing, the majority conclusion in last week’s Court of Appeal judgment was that: "““There is no principle that a hearing will be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there is, the irreducible minimum can, depending on the circumstances, be met by disclosure of as little information as was provided in AF, which is very little indeed””." In any case, compliance with Article 6 is exclusively concerned with disclosure. The proceedings as a whole must be assessed for compliance with Article 6. For example, proceedings could be Article 6-compliant because of the contribution of the special advocates, even where disclosure has been very limited. I should add that, on a practical level, an amendment along these lines would not necessarily further clarify Article 6. It could lead to further litigation on how a gist or a summary should be defined, and whether that definition had been met in any given case. Amendment No. 139 would make provision for special advocates to communicate with a controlee after the service of closed material without having to give notice to the Secretary of State. The current position allows the special advocate to receive written instructions from the individual after he has seen the closed material. A special advocate can also communicate with the individual after he has seen the material, provided that it is with the permission of the High Court. The special advocate must notify the Secretary of State when seeking permission, giving the Secretary of State time to object to the communication if she thinks it necessary to the public interest, although the final decision is that of the court. In a number of cases, the special advocate has obtained permission to communicate legal points and factual matters to the controlee and take instructions from the controlee on specific issues. The Government remain of the view that this change would be inappropriate and potentially damaging to the public interest. The current position, including giving notice to the Secretary of State, is an appropriate safeguard to ensure that sensitive sources are protected and the security of the UK is not compromised. The courts cannot safely determine the potential damage to national security without having heard any representations from the Secretary of State and from the originators of the material, who may be aware of wider material considerations that are not apparent on the face of the closed case. The problem becomes even more immediately obvious when considering circumstances in which judges new to national security matters are presiding. How would they sensibly take a decision without any advice from the owners of the material? Indeed, it would be unprecedented to have a procedure by which matters bearing on national security were to be decided in the absence of the relevant Secretary of State. No prejudice is caused by putting the Secretary of State on notice if permission is sought. The suggestion that the Secretary of State is at an advantage in seeing the questions that the special advocates wish to put to the controlled person is overstated. All that the questions will indicate is what will already be apparent to the Secretary of State; that is, areas of the closed case where the special advocates would be assisted by further information from the controlled person. I emphasise that if the court grants permission, the special advocate’s subsequent communication with the controlee remains confidential. There is no foundation to the claim that the Secretary of State might gain an advantage if a question was asked and no information was received in response and this was subsequently deployed in the proceedings. The courts have already it made clear that they will not draw a negative inference from a controlee’s silence. As with all the other amendments proposed by the JCHR, Amendment No. 139 was not a requirement of the Law Lords’ judgment in MB. Nor was it a requirement of last week’s Court of Appeal judgment, despite explicit argument to this effect. The majority view was that, "““the special advocates seem to us to be too gloomy … It is clear that there is in practice an ongoing dialogue between the special advocates and the representatives of the””—" Secretary of State— "““in every case which is very encouraging … it seems likely to us that, with an appropriately flexible attitude on the part of the””—" Secretary of State— "““it will be possible to afford the controlee with an appropriate measure of procedural protection””." Lastly, the court is required by control-order proceeding rules to ensure that information is not disclosed contrary to the public interest. If it authorised a communication that was damaging, it would be in breach of the rules. The court could in practice be unwilling to permit such communications without the Secretary of State first having had the opportunity to make representations to ensure that it did not disclose material that it would be contrary to the public interest to disclose. Amendment No. 140 would provide that in control order hearings, the controlee is, "““entitled to such measure of procedural protection as is commensurate with the gravity of the potential consequences of the order for the controlled person””." The whole purpose of the MB hearing was to decide whether the procedural protections in the Prevention of Terrorism Act 2005 were sufficient. As a result of the Law Lords’ judgment in MB, the 2005 Act is fully compatible with convention rights. The procedural protections in the Act, as read down by MB, are thus by definition commensurate with the gravity of the potential consequences to the controlee of the order. The argument made by the controlees during the Law Lords hearing—that a control order was in effect a criminal charge and so commensurate criminal protections should apply—was explicitly rejected by the Law Lords. Moreover, as I have already made clear, the Government already disclose to the controlee all the material that they can. The amendment was not a requirement of the MB judgment, and is unnecessary and potentially damaging to the public interest. Amendment No. 141 would make provision for special advocates to call expert witnesses. This is not a matter for primary legislation. Any amendment would more appropriately be to control-order proceeding rules. Regardless of that, the amendment was not a requirement of the judgment in MB. It is unnecessary not only for that reason but because in principle it is already open to those at hearings, including special advocates, to apply to the court to call expert witnesses. However, the Government are minded to ask the relevant bodies making rules of court to amend the control-order proceeding rules in due course to make it explicit that special advocates can cross-examine witnesses and adduce evidence. This would bring this element of the rules into line with the SIAC rules, which have already been amended in this way. That said, there would still be significant practical difficulties to overcome in special advocates questioning an expert specifically on closed material. Either the expert would need to have developed vetting security clearance—an expensive and time-consuming process that would also broaden the closed environment and thus make it harder to obtain consent to use the closed material—or the questions would need to be in open but posed after the notification of the Secretary of State. More generally, it is hard to see who the expert witnesses in closed material would be and what value they could add to the proceedings. That is why the Security Service provides training to special advocates to enable them to understand and analyse the closed evidence that is disclosed to them and thus to make arguments of the kind that would ordinarily be assisted by expert witnesses. Moreover, during hearings, both the special advocate and the judge always have an opportunity to cross-examine a Security Service officer extensively. These ensure that in this regard, too, the controlee always receives the substantial measure of procedural justice to which they are entitled. In conclusion, the Government do not agree with Amendments Nos. 131 and 137 to 141. At best, they would be unnecessary; at worst, they would be damaging to the public interest. None of them was required by the highest court in the land, even though some of the points were explicitly argued for in front of the Law Lords.