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Mrs. Gwyneth Dunwoody (Crewe and Nantwich) (Lab): I have no legal training of any kind, but is my hon. Friend not undermining his own case? He says that these actions are taking place, so any change in the law is not necessary. We cannot have it both ways. Is he really saying that we should hand to terrorists the one absolute victory of knowing that they have destroyed the most important thing, which is the freedom that they so bitterly resent?
Mr. Dismore: No, I am not saying that. I am illustrating the fact that the system has gone out of its way to put as many people as possible on trial, with correct charges under the criminal law, but inevitably there will be some people against whom there is a strong case but where the evidence is not admissible in court, or can be put into court only in circumstances that would severely compromise its source, so they simply cannot be put on trial.
For example, I agree with the Opposition that we need a new offence of acts preparatory to terrorist activities. That is essential, because at present the prosecution authorities face a real problem in trying to bring some of those activities within a conspiracy charge. Shoehorning into conspiracy charges some of the activities that we are talking about gives rise to the defence that the agreement to commit the criminal act has not been sufficiently formalised. Not having the kind of law that we need opens up a line of defence for potentially quite serious acts. If we were to amend the criminal law, that would give greater opportunity to bring more proceedings.
I also do not agree on the question of intercepts. I fully understand what the Home Secretary has said about that, and he makes a powerful case, but to say that intercepts would be of no use whatever in any case, or would compromise the methodology in every case, is wrong. It would be appropriate to allow intercept evidence to be used, but only if it can be used safely. It is not the panacea that many people think it is. It cannot be used in every case, and there is the problem of interpreting the intercept evidence to the juryfor example, proving the contextand what was actually said usually means something quite different. But intercept evidence that is in the public domain in relation to the cases arising from the kidnapping of tourists in Yemen, which has been printed in the newspapers, would have been quite powerful in dealing with one or two of the individuals involved.
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I was impressed by what my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) said about whether the judges or the Home Secretary should make the decision. I would question whether the judges would feel comfortable about making those decisions in the first place. Their role has always, rightly, been to consider the interests of the individual. It is for the Home Secretary to consider the interests of us all collectively. The risk of this approach would in many ways be letting the Home Secretary off the hook. The blame would be passed to somebody else if a particular control order was not imposed by a judge, but the person concerned went on to commit serious terrorist acts. The judges are good at judicial review of administrative decisions; I do not believe that they are very good at making them.
There are risks of miscarriages of justice. Whether there is a miscarriage of justice or a miscarriage of administrative decision may be a semantic argument, but the consequences in these circumstances of a miscarriage are far less than the prospect of someone, as we saw in the Guildford case, being imprisoned for 10 or 15 years. The risk of wearing a tag for months or years is far less.
To move on to some of the practicalities of control orders, of course they will not be as effective as detention has been in dealing with some of those individuals. There is the risk of absconding, as I mentioned in the case of Abu Qatada. There is the risk of breach of the orders and trying to enforce the prosecution that would follow from that, to which I will return. There is also the risk of what might be called mission creep, and wider use of the control orders than has been seen in the use of the powers to detain. The powers of detention are the nuclear option of dealing with terrorism. They are so severe and draconian that they have been used sparingly. However, lesser powers carry the risk of being used more frequently. I should like assurances about that.
There is a major question about resources for operating the new system, which will be harder for the police to manage. I question whether conventional surveillance is a practical proposition, given the number of people involved. The balance between technology and manpower for surveillance will have to be examined. We must also consider the extent to which monitoring is covert or overt, and the extent of tagging. I would be worried if an outsourced company monitored tagging, as has happened with some tagging of ordinary criminals. I should like an assurance that if tagging is to be used, it will not be outsourced. We must guard against that.
Clearly, all subjects of control orders must have their own case officer. An individual risk assessment will be required and resources will also have to be assessed. I should like an assurance that the Home Office, not council tax payers, will provide the additional resources that the police services involved need to carry out the extra duties. For example, the provisions could place a large burden on the Metropolitan police, who have borne the lion's share of anti-terrorism law so far. That will apply especially in the case of an alleged breach of a control order, which will be resource-intensive to investigate. The criminal standard of proof will apply and there will be a need to ensure that the evidence brought is admissible.
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We must recognise that the sort of people with whom we are dealing have been well advised in the past. They sail close to the wind in some of their activities. It is fair to say that they have run rings around the authorities in many respectsone has only to consider the activities of Abu Hamza and Omar Bakri Mohammed to understand how they have brought the authorities into disrepute. There is little doubt that they will push orders to the limit and possibly beyond. I want to be satisfied that the Home Secretary believes the orders to be sufficient to ensure that those involved cannot incite and foment extreme views, as has happened in the past.
We should consider the impact of control orders on community cohesion. The police could be operating in a difficult environment if the local community is either supportive or afraid of the subjects of the control orders or their followers. That could affect co-operation with the police, especially in relation to the subject of the control order, or more widely, in the fight against terrorism. There could be a much wider impact on local policing and its relations with minority communities.
The police will also have to protect the subject of the control order from possible victimisation. There have been examples of that in cases involving paedophiles, who have been subject to appalling victimisation. I suspect that those subject to control orders in their homes may face similar problems. There may be an impact on policing levels in local boroughs in London and operational command units elsewhere if the local police service is called on to provide part of the service. I hope that the Home Office will go out of its way to ensure that proper resources are provided for that.
Mr. Grieve: People need not be detained in their homes. The place of detention could be specified as cell 16, wing D, Belmarsh. The point is that they commit an offence if they walk out through the door.
Mr. Dismore: I hope that anyone who walked out through the door when in lawful detention would be deemed to have committed a separate criminal offence. I am dealing with people who are placed under a control order of a rather lesser naturethose who are tagged in their homes, as happens, for example, to sex offenders. They are put under various forms of control and reporting arrangements. We are considering not only the extreme end of the scale, but further down.
There is a need for a consistent approach to control orders. There is a genuine role for Scotland Yard in co-ordinating the approach nationally.
I have not gone into detail about some of the more principled issues, which have been explored fully in the debate. When we consider those issues, it is important not to take our eye off the ball of some of the practicalities that are involved in control orders. I have tried to tackle some of them. I should like reassurance from the Home Office on the practical problems that might arise should the Bill make further progress.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC):
I speak on behalf of Plaid Cymru and the Scottish National party.
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Yesterday's exchanges revealed that the Government's perception of the level of terrorist threats is, according to the Home Secretary, relatively unchanged, as it has been over the past two or three months. The impetus for the Bill is, I think, either the Belmarsh judgment or political necessity. I believe that its timing owes as much to the political calendar as to the scathing, and correct, judgment handed down by the Judicial Committee recently.
I have read Lord Carlile's report and its conclusions. Conclusion 8, on page 37, states:
"Lessons can be learned from the Anti-terrorism, Crime and Security Act 2001 detention provisions to enable new laws to be subject to a fair and acceptable system of law . . . including a more developed special advocate procedure and tribunals with a lay element."
Those of us who do not sign up to the Government's perception of threat from terrorism, or at least the degree of that threat, none the less accept that there is a level of threat, and therefore endorse what Lord Carlile says in his considered and balanced report. I believe that the Bill conflicts directly with that conclusion. Far from attempting to introduce a fair and acceptable system, the Bill will do the opposite.
Briefing notes from Libertyproduced, obviously, quite rapidlyrefer, in paragraph 8, to restrictions on liberty being permissible only with a view to some form of criminal disposal at the end of the day. It goes on:
"To be lawful they can only be used to detain or restrict someone with a view to bringing them to trial, to stop them committing an offence or from absconding after committing an offence."
That refers to article 5 of the European convention on human rights.
That is in article 5(3) of the convention.
"Restrictions such as tagging and curfew are established practices in criminal law. They are imposed as bail conditions by police or courts to ensure that, for example, a defendant attends court".
Obviously what is meant is that such restrictions are part of a larger judicial process, and are not an end in themselves.
The Bill gives the Executive, through the Home Secretary, powers that have always resided with the judiciary, and with good cause. The whole issue of the constitution and the separation of powers is involved in this debate. Everyone accepts that there is a need for the separation of powers. A few weeks ago, in a debate in this place, many Labour Members argued that that was a sacrosanct notion, to be applied even to prevent Members from sitting in a judicial capacity. It was, I suppose, a good argument, but none of those siren voices are here today. The new Labour ranks are pretty thin on the ground. The loyalists who argued that case a fortnight ago have gone to earth.
Today, though, we are dealing with a far more serious mattera far-reaching matter. The Bill will enable the Home Secretary to impose sweeping and far-reaching infringements of liberty on the basis of mere suspicionalbeit reasonablethat an individual is or has been involved in terrorism or terrorism-related activity. What evidence will the Home Secretary have to present to prove that suspicion? It will be evidence produced by the intelligence services.
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One of the salutary lessons of the Iraq war is that intelligence briefing alone, and its subsequent interpretation by politicians, often lead us to very wrong conclusions. Mere suspicion has never had any standing in any legal proceedings hitherto. The interpretation of the word "reasonable" will be subjective, and will hardly constitute a safeguard in the circumstances.
Clause 2 allows the Home Secretary to derogate from article 5 of the human rights convention if he is satisfied, merely
that a person has been involved in such activity. In other words, the civil burden yet again makes it easier for the Executive to ride roughshod over the individual. If it were ever justified to deprive an individual of his or her liberty in that way, the standard of proof should be far higher. In this instance, the Executive are exercising powers hitherto exclusive to the judiciary, who have always in criminal cases been subject to the higher and safer standard of "beyond reasonable doubt". That is a major concern.
Clause 8 deals with appeals relating to derogating control orders. Subsection (1) refers to where there has been a modification of an order
Perhaps in due course the Minister can tell the House where she sees actual consent being given by the controlled person. In what circumstances will that happen? I also ask for confirmation that, in the appeal process, the person will be entitled to legal representation of his or her choice and that legal aid should be available.
Clause 9, which relates to appeals in respect of control order decisions, states that no appeal shall lie against the decision of the court
That again is problematic, because, under paragraph 4 of the schedule, the Executive can make up their own rules of court and can
"make provision about the mode and burden of proof in control order proceedings and about evidence in such proceedings"
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