Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2009

My Lords, last year my noble friend Lord Kingsland eloquently set out the position of these Benches. He said: ""We … take the view that, in circumstances in which it is impossible to prosecute or deport someone, some form of control order system will be necessary. However, control orders are instruments of Executive power and consequently pose dangers to a society based on the principles of democracy and the rule of law".—[Official Report, 27/2/08; col. 731.]" Indeed, such orders are obnoxious. He went on to say that the system must be limited and that the need for control orders must be reduced. We are told by the Government that control orders are necessary because it is not possible to prosecute or deport some terrorist suspects and that indeed there is a gap between the court's requirement for evidence and the ability of the state to meet it without prejudice to wider interests of security. These are real issues. However, despite warnings from opposition Benches in both Houses, and despite successive reports from the statutory reviewer of terrorism, the noble Lord, Lord Carlile, on the need to reduce reliance on control orders, the Government have done very little to help close the gap they have identified. Their lack of interest in so doing says very little for their attachment to civil liberties. It is not as if the Government were powerless to improve the situation. They could have taken serious steps to increase the possibility of obtaining admissible evidence, and the likelihood of successful prosecution. I will examine two possible routes to reduce reliance on control orders over which the Government are dragging their feet. On the issue of intercept evidence, the noble Lord, Lord Carlile, in his annual review of the control order system, clearly stated that using intercept evidence had the potential to reduce the need to resort to control orders. Despite the Chilcot review accepting as long ago as January last year that using intercept evidence could be beneficial and could be introduced without threatening security sources and methods, the Government have proceeded very slowly. More than a year later, there is no sign of the implementation committee finishing its work. That it should do a proper job is a given. However, the last statement by the Home Secretary was equivocal and, crucially, conveyed no sense of urgency on the part of the Government. The deportation of foreign suspects is another route to reducing the number of control orders; but despite the Government declaring that this was an important part of their policy, little progress has been made. The Government in 2005 put in place memoranda of understanding with three countries: Jordan, Libya and Lebanon. They exchanged letters with Algeria in 2006. Nearly three years later, there has been only one more: Ethiopia. In a parliamentary Answer given last July, the Government said that they were pursuing agreements with a number of countries. Does the Minister have progress to report? Is the necessary muscle being put into achieving what the Government call an important part of their policy? Last month’s House of Lords judgments in three cases, including that of Abu Qatada, demonstrated that deportations with assurances are compatible with the European Convention on Human Rights—which of course is the point. The Government need to pursue their own policies with more vigour. I ask the Minister if the Government have made a quantitative assessment of how far using intercept evidence and deporting suspects would reduce the number of control orders. Have the Government looked into whether individuals presently subject to control orders can be prosecuted now that the range of terrorism offences has been extended significantly? Legislation such as the Counter-Terrorism Act 2008 included a number of new offences, and also made terrorist connections an aggravating factor in prosecuting and sentencing. The statutory reviewer, the noble Lord, Lord Carlile, stresses time and again in his reports that the cases of those subject to control orders should be under constant review. If, in the light of their own legislation, the Government have not reviewed the possibility of successful prosecution, could the Minister explain why? What is the point of all this legislation if the Government do not use the powers they take? As well as doing very little to reduce the need for control orders, the Government have also refused suggestions from all sides of your Lordships’ House that would have made the current system significantly more compatible with our notions of the rule of law and with our human rights obligations. With this aim in mind, during the passage of the Counter-Terrorism Bill 2008, we on these Benches tabled two amendments on control orders. The first would have required the Director of Public Prosecutions to decide whether prosecution was the appropriate course of action to take in respect of each potential controlee. The DPP would have had to declare that the prosecution was impossible before a control order could be activated. The decision on whether to prosecute is taken currently by a chief police officer. However, in previous reports, the noble Lord, Lord Carlile, has raised two objections to this. He described the wording of Sections 8(4) and 8(5) of the relevant Act as strange. It contains an obligation—the word "must" is used—for the police to consult the relevant prosecuting authority, but—here is the critical and odd point—it goes on to say only, ""to the extent that he considers it appropriate to do so"." The noble Lord, Lord Carlile, also said: ""I have seen letters from chief officers of police in relation to each controlee certifying that there was no realistic prospect of prosecution. Little is given by way of reasons. Whilst I have no evidential basis for doubting, in my view the letters provided by chief officers should give clear reasons for the conclusion that there is not evidence available that could realistically be used for the purposes of a terrorism prosecution"." Those are important words. The noble Lord further suggested that the letters should make it clear why no additional investigation will be undertaken and why different forms of evidence-gathering would not or could not be undertaken. To get the reasons, and to get the reasons out in the open as to why a prosecution was not possible, was the reason why we on these Benches thought that a decision on whether to prosecute would be better taken by the DPP. The second amendment would have ensured that the prospect of prosecution, if legitimately considered and properly rejected at the outset, should nevertheless be kept under regular review. That point is picked up by the Joint Committee on Human Rights. It said recently that it, ""has questions regarding the seriousness of the Government’s commitment to prosecution as its first preference, in light of the lack of continuing investigation of controlled individuals and a lack of effective system to keep the prospects of prosecution under review"—" precisely. As I said, the amendment that we tabled would have ensured that the prospect of prosecution would be kept under regular review. I do not know why the Government could not have accepted these amendments; they would have been wise to do so. The Court of Appeal has previously said that the Secretary of State’s duty to review the prospects of prosecution should be expressed in statute. There are other problems with the current system of control orders. We did not table amendments on these, but they are well known and need to be addressed. The first is the need for due process. We are not happy with the use of special advocates and the fact that the defendant receives no information on the case against him. As the noble Baroness, Lady Miller, said, the recent report by the international eminent jurists panel said that control orders could give rise to a parallel legal system. I know that the Law Lords are currently considering what measures are necessary to ensure a fair trial, but should not the Government take the lead and themselves be active on this? Finally, let me turn to what the noble Lord, Lord Carlile, calls the "end game" for control orders. The noble Lord has consistently recommended that there be a recognised and statutory presumption against the extension of control orders beyond two years. He has not set an arbitrary limit; he has set a presumption. He has given reasons for this: ""It is only in a few cases that control orders can be justified for more than two years. After that time, at least the immediate utility of even a dedicated terrorist will seriously have been disrupted. The terrorists will know that the authorities will retain an interest in his or her activities, and will be likely to scrutinise them in the future. For those organising terrorism, a person who has been subject to a control order for up to two years is an unattractive operator, who may be assumed to have the eyes and ears of the State upon him/her"." Do the Government accept the reasoning of the noble Lord, Lord Carlile? In another place, the Minister of State said: ""The Government believe that control orders should be imposed for as short a time as possible, commensurate with the risk posed".—[Official Report, Commons, 3/3/09; col. 738.]" The Minister has made that point. Is this view being seriously reflected in what actually happens? If the Government had accepted our two amendments to the then Counter-Terrorism Bill, and if they had made progress on addressing other well-known problems with the control orders regime, we would have been much more sympathetic to their renewal today. As it stands, we are most certainly not sympathetic. As shadow Security Minister, I am in a difficult position. I am clear that the Government have been less than energetic in their efforts to close what they call "the gap". Mostly because of this, I cannot prove that none of the orders is necessary, and I am not in a position to assert that there is no valid security reason for them that justifies obstructing their renewal. Let me be clear—just as there is a positive obligation on Government, imposed by human rights law, to take effective steps to protect the public from real threats of terrorism, so human rights law imposes obligations and tests on our counterterrorism legislation. My constant objection to the policies of this Government is that they show too little regard for the second set of obligations. As my noble friend Lord Kingsland said, ""responding to terrorism with legislation that is itself capable of undermining our values can, if it is not limited to what is absolutely essential and subject to regular review, achieve precisely the objects that the terrorists seek".—[Official Report, 5/3/07; col.32]" That is our problem here today. In the light of this guiding principle, a Conservative Government would, should we enter office, not only review the current control order regime but review, rationalise and consolidate the plethora of existing counterterrorism legislation. In so doing, we would take measures to close "the gap" and would replace the present control order system. We would find ways of bringing the UK into line with other comparable democracies on the use of intercept evidence in court in terrorist cases. We would end the abuse of stop-and-search powers, which are available under terrorist legislation—those powers are being used for non-terrorist related incidents. We would stop inappropriate surveillance by public bodies and re-examine controversial offences relating to distribution of literature and glorification. As for today, if the House divides, I invite my colleagues on these Benches to abstain.