Counter-Terrorism Bill

Amendment No. 142 proposes that no control order should be allowed to last for more than two years other than in exceptional circumstances. This was a recommendation originally made by the noble Lord, Lord Carlile. I appreciate the broad concern behind the amendment that control orders may be applied indefinitely. Clearly that is not something that one wants and is unfounded My first point in responding is that the Government agree that control orders should be imposed for as short a time as possible commensurate with the risk posed by each individual. There are a number of safeguards in place. First, the legislation requires that every control order renewed by the Home Secretary must remain necessary to protect the public from terrorism, and its obligations must be necessary for purposes connected with the preventing or restricting of involvement in terrorism-related activity. Secondly, the decision to renew a control order can be appealed by the controlee and the High Court must agree that these tests have been met. This is in addition to the automatic review of the original order. Each control order is therefore subject to extensive, rigorous judicial scrutiny. As the Committee will know, the courts are not afraid to quash control orders. It is a good thing that they are not. Thirdly, all control orders are subject to regular and rigorous internal assessment, including formal review every quarter by the control order review group. Consideration of exit strategies is an integral part of these quarterly reviews. These safeguards ensure that control orders remain in place only where it is necessary and proportionate to do so. The test of necessity is already a high hurdle for the renewal of an order and is a test that is well understood and rigorously applied. I hope the Committee will indulge me in repeating that point: a control order can be renewed only where it is necessary to do so. At any appeal against renewal of the control order by the controlee, the High Court will consider this issue. This provides sufficient protection to an individual on its own. A new provision that includes a test of exceptional circumstances does not add any value to the existing test and, in any case, would lead to greater legal uncertainty as there would be litigation over its meaning. The second broad point relates to the practical position, which is that the Government continue to work hard to identify exit strategies for every control order case. This consideration of exit strategies is not only a theoretical exercise. As we have made clear, exit strategies have been implemented for a number of individuals subject to control orders. In nine cases a control order was no longer necessary as it was possible to instigate deportation proceedings because of the development of a Memorandum of Understanding with the relevant country. For four individuals, the control order was revoked. In these cases the decision was taken because the necessity test could no longer be satisfied. This does not mean that there was no justification for making the order in the first place but acknowledges that the passage of time and the impact of obligations in the order on an individual may alter the position. For similar reasons, two further cases were not renewed. Since the control order legislation came into effect just over three years ago, only 38 individuals have ever been subject to control orders and there are currently 16 in force. Of those currently subject to a control order, one has been subject to an order for less than six months and another seven have not yet reached the 12-month point. At the other end of the spectrum, one individual has been subject to an order since the legislation took effect—just over three years. The third broad point relates to the national security implications of the amendment. While we think it right and proper that the case for renewing a control order should be looked at very carefully and be subject to judicial scrutiny as necessary, we do not accept that there should be an assumed arbitrary end date for each control order. In some cases a period of less than two years on a control order will be sufficient to mitigate the risk posed, but experience to date suggests that in other cases the arguments remain sufficiently compelling at the two-year point, and even the three-year point, to require renewal in the interests of protecting the public. That is our primary concern. The application of an exceptional-circumstances rule would not be helpful in this context. Indeed, we need to be careful about assuming that individuals no longer pose a threat after a defined and relatively short period. Each order addresses individual risk. If it is necessary and proportionate to extend a control order beyond two years to protect the public from terrorism, it is the Government’s responsibility to do so. A definite end date to every control order would also mean that the individuals subject to them could simply disengage from involvement in terrorism-related activity on the basis that they know they could re-engage at the end of that period. The near certainty of a two-year limitation would encourage such behaviour in a way that the current provisions do not. While I understand the concerns that have been expressed—and, indeed, to an extent, share them—I cannot agree with the amendment.