Counter-Terrorism Bill

I thank the noble Lord, Lord Lester, for making those points. I am glad that he supports control orders, which I have to say are nowhere near a preferred option. The Government would be much happier if there was another way. I am probably paraphrasing when I say that it is the best of a bad job. It is not the option that one would like to use, but it is necessary for public safety. I also take the point about having something in the Bill to take into account an agreed view on some of these serious and major issues of law. If we look at that, perhaps it can be taken account of beyond here. Having asked my team to look at each amendment and to say why they felt that it was wrong, they have worked hard to do that. I have already said that our preferred approach is prosecution, but there are a number of robust safeguards. First, there is consideration of the prospects for prosecution before a control order is imposed. Under Section 8(2) of the 2005 Act, the Secretary of State must consult the police regarding the prospects of prosecution for a terrorism-related offence before making or applying for permission to make a control order. In turn, under Section 8(5) of the Act, the police must then consult the Crown Prosecution Service. I emphasise that this consultation process already goes beyond what is expected in many investigations where the police decide whether or when it is necessary to consult the CPS. The position is set out in a letter from the police to the Home Office. It is laid before the High Court as part of the court’s review of each order. The letter explains the conclusion that the police, in consultation with the relevant prosecuting authority, have reached and how it was arrived at. This information is available to the controlee. The second key safeguard concerns the ongoing consideration of prosecution. Under subsections (4) and (5) of Section 8 of the 2005 Act, the duty of keeping the prospects of prosecution under review is on the chief officer of the police force, who must consult the CPS as appropriate. The third key safeguard is fulfilled by the control order review group. This group, consisting of law enforcement and intelligence agencies and the Home Office, formally reviews the prospects of prosecution of controlees on a quarterly basis. Closed and open records of this consideration are laid before the High Court as part of the court’s review of each control order. The fourth key safeguard is the judicial review of each control order. If the public interest was demonstrably better served by prosecution of an individual, the order would be extremely likely to fail the test of necessity and so would be quashed by the High Court. This was reflected in the court judgments in the case of E, where the High Court concluded that it should quash a control order because the prospects of prosecution had not been kept properly under review, meaning that the test of necessity was not met. This was overturned by the Court of Appeal, but on the basis that in this case the failings in relation to review would not have made a practical difference—that is, in reality prosecution was still not possible—rather than because such a remedy was necessarily inappropriate if the failure would have made a difference. Those four key safeguards have been subject to extensive scrutiny by the courts. The current legislative provision and procedures have been accepted by the courts as adequate, including by the House of Lords in the E judgment, and ensure that, wherever possible, individuals who are or may become subject to control orders are prosecuted for terrorism-related offences. No changes to the legislation were required by the House of Lords. The absence of prosecutions of controlled individuals for terrorism-related offences, other than breaches of their control order, is not an indication that the current provisions have not been applied diligently. Rather, it demonstrates that at the time the control order was made there was, and continued to be, no realistic prospect of prosecution. Moreover, since control orders are designed to prevent, restrict or disrupt individuals’ involvement in terrorism-related activity, it also arguably indicates that the control order against them has been successful in disrupting their terrorism-related activity. Certainly, that assessment is made by the agencies. Amendment No. 132 proposes that non-urgent control orders could be imposed only if the DPP has certified that there is no reasonable prospect of successful prosecution. First, I want to query the basis on which the amendment is proposed. Successful conviction and imprisonment offers the best outcome for the protection of the public. For that reason, the strong preference of the Government, law enforcement agencies and the Crown Prosecution Service is to prosecute suspected terrorists. This amendment rather supposes that the opposite is the case, and that the Government and law enforcement agencies would rather put suspected terrorists on control orders than prosecute them. There is no basis for that assumption: indeed, more than that, it is counterintuitive. That in itself should lead Members of the Committee to question the necessity of this amendment. There are a number of reasons why the Government oppose this amendment. The Law Lords scrutinised this matter at length and concluded that no changes to Section 8 of the Prevention of Terrorism Act were required. Indeed, they considered that there were ““strong practical reasons”” for the current approach and that changes would have the, "““potential to emasculate what is clearly intended to be an effective procedure””." As I explained earlier, the Secretary of State is already statutorily obliged to consult the police on the prospects of prosecution before an order is made or applied for. The police are obliged to consult the CPS, even where it is clear to them that there is not sufficient evidence to prosecute. However, this consultation, still less its results, is rightly not a condition precedent of making an order. There are good reasons for this. Providing certification by the DPP, as the amendment proposes, may not be practicable before the making of an order. Amendment No. 132 makes an exception for urgent control orders to try to address the urgency point. None the less, it is not appropriate to include certification on the prospects of prosecution as a condition precedent. There are principled and practical reasons for this, in addition to the issue of urgency. First, the amendment would undermine the constitutional position. It would effectively give the Director of Public Prosecutions a veto over the Secretary of State’s decision to impose a control order. This clearly is inappropriate, as such decisions are properly a national security matter. Secondly, it could damage other investigations, other prosecutions, or otherwise damage the public interest. For example, in rare circumstances the CPS may decide that a prosecution is not in the public interest, even if evidence is available that may be sufficient to prosecute; for example, a prosecution could bring into the public domain a valuable intelligence gathering technique, reducing its future efficacy. Another example might be that prosecution of a particular individual for a particular offence could damage a more complex, ongoing investigation of that individual and a wider group of individuals. If that individual is already aware of the law enforcement agencies’ interest in him, imposing a control order would not alert him to the wider investigation, and that information could be protected in control order proceedings. But a prosecution for a particular offence could well alert him and the wider group to the ongoing wider investigation. The information could not be protected as in control order proceedings as it would probably form the evidence on which he was charged. This is not an issue limited to control orders or terrorism. In every case that goes to the CPS, even if the CPS concludes that the evidential threshold is met, it must separately assess whether a prosecution is in the public interest. This amendment covers only the first element. Thirdly, it could leave a public protection gap. A control order may be necessary to protect the public from a 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 a judge would lawfully be able to impose on the individual. In those circumstances a control order might be required in the interim to manage that risk. Fourthly, it would be resource intensive, does not take account of operational realities and would likely have the presumably unintended effect of reducing the initial judicial scrutiny of control orders. Providing an answer to whether an individual can be prosecuted is a much longer and more complex task than simply beginning the process by consulting on the prospects of prosecution. Consequently, the amendment might well force the Government to use the urgency procedure more, in circumstances where the national security case meant that a certificate could not be waited for any longer. This would mean that the normal requirement for the Secretary of State to seek permission to make the control order from the High Court would not apply. Fifthly, and on a point of detail, specifying the DPP personally rather than the relevant prosecuting authority is inappropriate. It is unusual to do so, places an unnecessary resource burden on that post and creates an unnecessary potential bottleneck. Amendment No. 133 deals with the ongoing review of the prospects for prosecution. This amendment contains a combination of inappropriate and unnecessary elements. Proposed new subsection (6A)(a) provides that the Secretary of State should ensure that the prospects for prosecution are reviewed every quarter. This is inappropriate. It is important that we do not undermine the independent role of the CPS and the police. The CPS, not the Secretary of State, is responsible for considering whether a person should be charged with a criminal offence. Any shift in this responsibility could undermine its role. The Act reflects this constitutional position. Nor would it make organisational sense to require the Secretary of State to ““ensure”” the actions of a department not under her supervision or control—the CPS is independent of the Secretary of State. Under Section 8(4) and (5) of the 2005 Act there is already a statutory obligation on the chief officer of police to keep the possibility of prosecution under review throughout the period the control order is in force and to consult the CPS as appropriate. Proposed new subsection (6A)(a) is unnecessary, as are proposed new paragraphs (b) and (c). The statutory obligations of the Act, combined with court judgments, already deliver the intention behind the amendment. The courts have confirmed that the Secretary of State must periodically 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 her to the police. This was described by the Court of Appeal as, "““a duty to take reasonable steps to ensure that the prosecuting authorities are keeping the prospects of prosecution under review””." This, though, is not the same as a duty on the Secretary of State to ensure that the prospects of prosecution are kept under review. As I made clear in relation to the previous group of amendments on the right to a fair trial, we operate under a common-law system and 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 on these latter points. Indeed, it is considered bad practice to legislate unnecessarily. Moreover, the Home Office formally checks the position in relation to prosecution at the quarterly CORG meetings. Amendment No. 133 is therefore neither necessary nor desirable. The courts, including the House of Lords, have considered this point at length. They confirmed the extent of the Secretary of State’s responsibilities on this matter and that no changes to this section of the Act were required. Amendment No. 134 proposes that if there are no realistic prospects for prosecution of a controlee, the chief officer of police must provide reasons for this view both to the Secretary of State and, so far as is not contrary to the public interest, to the controlee. Neither of these proposals is appropriate or necessary. As I stated earlier, the Secretary of State is already statutorily obliged to consult the police on the prospects of prosecution, and the police are in turn obliged to consult the CPS. The police write a letter to the Home Office setting out the prospects for prosecution and explaining how decisions as to prosecution were arrived at. Following recommendations from the independent reviewer of counterterrorism legislation, the noble Lord, Lord Carlile of Berriew, the police and the CPS have reviewed the content of the letters sent to the Home Office by the police. The letters now include more detail than previously, but it would not be appropriate to go any further. There is no need to undermine the constitutional independence of the CPS and the police by requiring them to include further justification in the material sent to the Secretary of State. The CPS is an independent legal body. It is not appropriate for the advice given to be scrutinised or second-guessed by others, including the Secretary of State, because the decision whether to prosecute or not is an independent prosecutorial decision for the CPS. Nor is it necessary; what the High Court and indeed the Secretary of State and the individual need to know is that the prospect of prosecution has been considered. The letter is laid before the High Court as part of its review of the control order, and is thus available to the controlee as part of the court proceedings. Providing any further information on the reasons for not proceeding with the prosecution of a particular individual to that individual may well be against the public interest in all circumstances, rendering this element of the proposal nugatory. It would risk prejudicing future prosecutions because it would reveal the evidential gaps in the investigation to the controlee and could give that person an opportunity to frustrate the investigation so that no prosecution ensues. It would be inappropriate to disclose to the controlee advice given by the CPS to the police in these circumstances, and it may risk breaching current law if some of the information is based on intercept. It would also be highly unusual. In control order cases where there is ongoing review of the prospects of prosecution, it is perhaps slightly contradictory to require the giving of ““definitive”” reasons to the controlee as to why he has not been prosecuted. Lastly, again, the House of Lords judgment in E did not require any changes to this section. In short, robust safeguards are already in place to ensure that the prospects of prosecution for current or prospective controlees are kept under regular, rigorous review, with appropriate consultation. The reasons for each decision are laid before the court and are available to the controlled individual. Amendments Nos. 132 to 134 are therefore either unnecessary, as the proposals are already in place, or damaging, as they would undermine the independent role of the police and the CPS. None of the amendments is required by the House of Lords judgment in E. For these reasons, the Government are firmly against these amendments and I hope that the noble Lord will not press them.