Counter-Terrorism Bill

moved Amendment No. 48D: 48D: After Clause 80, insert the following new Clause— ““Control orders: right to fair hearing (1) The Prevention of Terrorism Act 2005 (c. 2) is amended as follows. (2) At the end of section 3(13) (supervision by court of making of non-derogating control orders) insert ““except where to do so would be incompatible with the right of the controlled person to a fair hearing””. (3) In the Schedule (control order proceedings etc.), at the end of paragraph 4(2)(a) insert ““except where to do so would be incompatible with the right of the controlled person to a fair hearing””. (4) At the end of paragraph 4(3)(d) insert ““except where to do so would be incompatible with the right of the controlled person to a fair hearing””. (5) After paragraph 4(5) insert— ““(6) Nothing in this paragraph, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with the right to a fair hearing guaranteed under Article 6 of the European Convention on Human Rights.””.”” The noble Lord said: My Lords, I now turn to the question of whether the terms of Section 3 of the Prevention of Terrorism Act 2005, its Schedule and the rules of court made under them are sufficient to provide a potential controllee with a fair hearing before an order is made, as required by Article 6(1) of the European Convention on Human Rights. The Appellate Committee of your Lordships' House decided, in the case of R v MB, that they were not, and they could become Article 6(1)-compliant only if certain convention protections were read into the statutory provisions by the court. It is our view that these convention protections should now become express stipulations on the face of the Prevention of Terrorism Act, not least because it would afford a degree of certainty in an area of law which engages the fundamentals of liberty. However, if their previous reaction to the proposals in this amendment is anything to go by, the last thing the Government seem to want is greater clarity. The issue that lies behind our amendment is whether the procedures provided by Section 3 of and the Schedule to the Prevention of Terrorism Act 2005 and the rules of court made in pursuit of it are compatible with Article 6 of the ECHR, in circumstances where the case made out against the potential controllee is, in essence, entirely undisclosed to him. We readily accept, of course, that, in a democratic society governed subject to the rule of law, there will always be difficulties in reconciling the individual’s right to a fair trial, on the one hand, with the preservation of secrecy in the interests of national security, on the other. The question is, in the context of our amendment, are there, or should there be, circumstances in which one of these two considerations—the national security consideration—trumps the other so as to permit the imposition of a control order without disclosing to the potential controllee the basis upon which it is sought? In R v MB, the potential controllee was confronted by a bare, unsubstantiated assertion which he could do no more than deny. In an ordinary case, by contrast, a client instructs his advocate on what his defence is to the charges made against him, briefs him on the weaknesses and vulnerabilities of the other side’s witnesses and indicates what evidence is available by way of rebuttal. In this case, none of these courses was open to MB. Moreover, the special advocate appointed to represent MB’s interests did not challenge the Secretary of State’s application to withhold the closed material from him and accepted that it would not be possible to serve a summary of evidence which would not contain information or material the disclosure of which would be contrary to the public interest. The noble and learned Lord, Lord Bingham, concluded that he had difficulty in accepting that, "““the very essence of the right to a fair hearing had not been impaired””." In the light of this, the noble and learned Baroness, Lady Hale, one of the five Law Lords sitting in this case, asked herself whether the use of the special advocate system can resolve the problem in circumstances where the Secretary of State wishes to withhold from the controlled person the material upon which he wishes to rely in order to establish his case. She concluded that: "““I do not think we can be confident that Strasbourg would hold that every control order hearing in which the special advocate procedure had been used as contemplated by the 2005 Act and Part 76 of the Civil Procedure Rules would be sufficient to comply with Article 6””." The difficulty for the judiciary in these circumstances, as analysed by the noble and learned Baroness in her speech, is as follows. Paragraph 4(2)(a) of the Schedule to the 2005 Act provides that rules of court may, "““make provision enabling control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative (if he has one)””." Paragraph 4(3)(d), moreover, provides that the rules of court must be, "““required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest””." These provisions are carried through and fleshed out in the civil procedure rules. Thus, the judge, in any one of these cases, is precluded from ordering disclosure to the potential controllee even when he considers this essential in order to give the controlled person a fair hearing. This would not matter so much if the judge was then entitled to refuse to uphold the control order. However, Sections 3(12) and 3(13) of the Act allow him to quash an order only in very strictly defined circumstances which, on the face of it, do not include the requirements of a fair hearing. However, the judge is also a public authority for the purposes of the Human Rights Act and therefore under a duty to act in conformity with convention rights. If, therefore, a judge concludes that a hearing cannot be fair unless more material is disclosed, the relevant convention provisions require him to be placed in a position under domestic law where he can quash the order. Accordingly, the noble and learned Baroness, Lady Hale, concluded that Section 3(13) and paragraphs 4(3)(d) and 4(2)(a) of the Prevention of Terrorism Act 2005 were required to be modified by the expression ““except where to do so would be incompatible with the right of the controlled person to a fair hearing””. All our amendment seeks to do is to place that expression, which the Appellate Committee of your Lordships' House implied into certain provisions of the Prevention of Terrorism Act to make them compatible with our ECHR obligations, on the face of the Act. The words of our amendment are the words of the noble and learned Baroness, Lady Hale, in R v MB. I beg to move.