Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1 to 9) Order 2010

My Lords, I declare an interest as a member of the Appellate Committee that heard the case at the end of 2004 of those who were subject to indefinite detention in Belmarsh. The conclusion was that the Act—I think it was the 2001 Act—that provided for that indefinite detention was unlawful in that it was contrary to the guarantees given by Article 5 of the convention on the right to liberty, unless that had been detracted from by an appropriate court process, which had not been the case. That decision led to the 2005 Act, under which the control order regime was put in place as a substitute for the Belmarsh indefinite detention regime. That came under challenge and led eventually to the decision of the Appellate Committee in AF. I again declare an interest as a member of that committee as well. The Belmarsh case had been concerned with Article 5 on deprivation of liberty; the AF case was concerned with Article 6 on absence of a fair trial. Those who had been subjected to the control orders, who had appealed, had had their rights and obligations in the society in which they lived seriously prejudiced; that was the purpose of the control orders. That had been done, as the Appellate Committee found, without there having been a fair trial because it had not been possible for the lawyers representing the controlees to be informed of the gist of the case against their clients. As they could not be informed of the gist of the case against their clients, they could not resist the thrust of the allegations made against them. How could that be a fair trial? The answer was that it could not, and that was the decision. That remains the position in relation to control orders. Unless the gist of the case against the person who is sought to be or has been made subject to the control order can be disclosed, he cannot be given a fair trial because he cannot be given a proper opportunity of showing that the case against him is false or unsound. The balance of probabilities, to which the noble Lord, Lord Goodhart, referred, could not be satisfied and reasonable suspicion should not be enough. The legal basis for legislating inconsistently with the convention is made quite clear by the Human Rights Act 1998. It is open to Parliament to legislate inconsistently with the convention; Parliament may do that. However, the courts are instructed by the Act to try, so far as is possible, to read down legislation which appears to be inconsistent with convention rights so as to render it consistent. If the courts can do that, they will do that. They did it in the case of MB when the control order legislation was read down, as your Lordships will remember. If that cannot be done, the legislation—inconsistent though it be with convention rights—is valid and effective and must be, and will be, implemented by the courts. Parliament can make clear its intention that the restrictions, whatever they may be, made possible by the legislation are intended to be effective notwithstanding that they may be inconsistent with convention rights. If Parliament makes that clear, the courts must accept it and apply the legislation. However, a Government who introduce legislation of that character and obtain its passage through Parliament are in breach of their obligations under the convention to abide by the convention. The convention provides a let-out in Article 15, which states that in a time of national emergency—I cannot quote the exact words, but this is the gist of it—the state in question may take such steps as are necessary to deal with the national emergency. That argument was run in the Belmarsh case. It did not succeed because the Appellate Committee was not satisfied that the indefinite detention which was provided for by the relevant Act was necessary; alternatives could have been, but had not been, considered and tried. But there it is: that is the convention outlet. In the 1998 Act the outlet is even clearer. Section 14 makes it clear that Parliament can legislate inconsistently with the Act. The Minister who promotes the legislation must then make a declaration of incompatibility. The position is clear. The courts will then give effect to that legislation on that footing. The obligation of public authorities not to act unlawfully by acting in breach of convention rights does not apply to Parliament. That, too, is made expressly clear by the Act. The position, therefore, is that if the Government really think it is necessary—using that word, "strictly"—to curtail the right to a fair trial of those of whom there is reasonable suspicion of being engaged in or sympathetic to terrorist activities, they can legislate accordingly and make a declaration of incompatibility. However, if they do that they must accept the opprobrium that would undoubtedly be cast on them from some quarters for having legislated inconsistently with the convention. If the Government do not do that—and they have not, which is understandable—they must accept that they cannot simply introduce legislation and expect the courts to enforce it if there is no provision for a fair trial. That is the position here. If at least the gist of the case against the proposed controlee cannot be given, that controlee will not have been afforded a fair trial. Paragraph 62 of the report of the Joint Committee on Human Rights refers to the approach of the prosecuting authorities—and therefore, I guess, the Government—to the disclosure of information to the special advocates. This, according to paragraph 62, is dealt with on a class basis. It is dealt with on the footing that if the information falls into a particular class it will, ipso facto, not be disclosed. That was a line that used to be taken in relation to public interest immunity certificates in ordinary civil and criminal litigation. If one party in a civil case, or the prosecuting authority in a criminal case, had information in their possession which the other party—or defendant as the case might be—thought might assist his case, disclosure would be sought. If the information fell within a particular class, regardless of its content, disclosure would be refused. The consequence of that was that in several cases appropriate information that might have been afforded to the defence and changed the result of the case was not disclosed. That changed in the late-1990s and early-2000s. All these claims for immunity from disclosure had to be dealt with on the basis of contents. If the content could be disclosed without damaging national interests, it had to be disclosed, whatever class it fell into. Now one finds, in paragraph 62 of the Joint Committee report, that in these control order cases the disclosure of information is being refused on the grounds that the information falls into a class that requires disclosure to be refused. That will not do. It is, I suggest, an indication that a great deal more can be disclosed than has been the practice in the past. The Joint Committee makes that clear, and it requires some thought to be given to whether instruction should be given for the disclosure obligation to be undertaken on the basis of content, not of class. Unless that is done, these trials will continue to be unfair; they will continue to be a breach of the Article 6 entitlement to a fair hearing; and there will continue to be reversals of these control orders in the courts. Subject to assurances on such points from the Minister, I would support the amendment of the noble Baroness, Lady Hamwee, and that of my noble and learned friend Lord Lloyd.