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BUSINESS OF THE HOUSE
Motion made, and Question put forthwith, pursuant to Standing Order No. 15 (Exempted business),
That, at this day's sitting, the Second Reading of the Prevention of Terrorism Bill may be proceeded with, though opposed, until Eight o'clock.—[Mr. Heppell.]
Question again proposed, That the Bill be now read a Second time.
Mr. Trimble: I am glad that we have the extra hour to consider the matter, but as I am conscious that other Members want to speak I shall not relax my pace too much.
I was pointing out that these are not judicial proceedings in the normal way. I was concerned by the line being taken by the Liberal Democrat spokesman as I had the impression from what he was saying that the Liberal Democrats would be happy to compromise with the Government if a little more were added, especially on the question of judicial proceedings. If the Liberal Democrats are minded to do that, it would be a mistake. There may be other ways to compromise, but that is not one of them.
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Mr. Heath : I want to make it absolutely plain that there is no question of our compromising with the Government about the process being put in the hands of the judiciary, not an elected Minister of the Crown.
Mr. Trimble: That reinforces my concern. The judicial proceedings that you will be settling for will be a sham and will be dangerous for the legal process of this country. You will be settling for a judicial process that is not a true one. That is the problem. Judges are there to make decisions based on legally admissible evidence; they are not there to make decisions on intelligence. Judges cannot be expected to assess intelligence, but the orders will operate only on the basis of intelligence, so it is foolish to think—[Interruption.] You would do better to adopt a position of outright opposition to the orders rather than taking the route that you are following at the moment—[Interruption]—I am sorry, Madam Deputy Speaker, I should address my remarks to the Liberal Democrats through you, but I was slightly irritated at that point.
Mr. Trimble: I shall not take another intervention. I have made my point and I want to reinforce it by saying that I am surprised that the judges appear to have accepted, or agreed to, those proceedings.
The form of judicial proceedings that we shall have as a result of the Bill will bring the courts into disrepute, will lower public esteem for the courts and will create huge difficulties for judges. I am surprised that they have agreed to such provisions and I suspect that when they come to operate them they will have second thoughts. The question then is: what should be done? The Home Secretary was quite right—there is a huge problem and we have to tackle it.
Reference has been made to the use of intercept evidence, a matter I brought to the House about a dozen years ago and to which I have returned on several occasions. I have never found the Government's arguments against it convincing. The right hon. Member for Islington, South and Finsbury (Mr. Smith) made the point in his speech that changing the law would not compel the introduction of intercept evidence, but would give a discretion that may or may not be exercised and, indeed, could be exercised in such a way as to protect sources.
Another reason given is that the use of such evidence would let terrorists and other criminals realise the extent of surveillance. I have always thought that argument stupid. It assumes that terrorists and criminals do not already know that there is surveillance. They do know about surveillance and they also have a fairly clear idea of its extent. The authorities may have some technical edges of which terrorists are not yet aware, but I suspect that any technical advantage will be temporary and may shift from time to time. What that argument reveals, however, is that the heads of the intelligence services—if they hold that view—assume that they are dealing with rather stupid people in terrorist organisations, and that concerns me because those people are not stupid. If the authorities and the intelligence agencies assume that they are dealing with stupid people who do not know what is going on, they are more likely to make mistakes in their approach to them, so I go back to the question and continue to endorse the use of intercept evidence.
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There is also the question—I believe that Lord Carlile picks it up in his report as well—of whether to use non-jury courts, along the lines of those used in Northern Ireland. That is a good idea. The so-called Diplock courts in Northern Ireland were a success, although they were not perfect—I was involved in one case where there was a clear miscarriage of justice. However, I think that there have been fewer miscarriages of justice in Diplock courts than in jury trials in this jurisdiction. Therefore, I recommend that, although I have to say that I think that Lord Carlile made a mistake by suggesting that there would be three-judge courts rather than single-judge courts. That is too extensive a point to deal with now, but there is an awful lot to be said for placing the clear, undivided responsibility on a person who then has to produce his reasons for scrutiny. Once there is more than one person, there is the opportunity to hide behind, and rely on, other people's judgment. Moving beyond one judge is a mistake.
The other thing that can and should be done is surveillance, which has been mentioned in the debate. That can be done. If that is not sufficient and we are dealing with a real emergency, there is something left in reserve that can be used, but only in dire circumstances—namely, a return to Executive detention, as applied in wartime and on a number of occasions in Northern Ireland and the Republic of Ireland. That is not a matter to be dealt with lightly, but it is not matter to be discarded. Those who spoke of it in terms of something that could never, ever be done are making a very serious mistake. There may be circumstances in which it is necessary, but it should be done only in extreme circumstances. If it is done, it is indeed a draconian measure, but the fact that it is so draconian means that it will be used only sparingly.
What bothers me about control orders is that they will become an easy option and people will slip into using of them because they will think, "It's only a control order. It's not the same as putting a person in prison. It's limiting what they can do." Over the years, the number of control orders will gradually accumulate and the problems that arise will grow as a result.
I have reached a conclusion that the legislation has been brought forward too soon. It will not be subject to proper scrutiny and it is fundamentally flawed. Consequently, I would be opposed to it. I have a little concern about the reasoned amendment that has been tabled by the Conservative and Liberal Democrat parties because it could be interpreted as ruling out the reserve power of Executive detention, which I believe must be available. Consequently, I do not regard that part of the reasoned amendment with favour, but, of course, one takes a balanced look at the matter and, on the whole at the end of the day, it is question of one's view on the Bill, and that is what will be expressed. I will not regard myself as being in any way bound by some of the persiflage that I find in the Liberal Democrat and Conservative amendment.
7.8 pm
Vera Baird (Redcar) (Lab):
I was glad to hear the Home Secretary once again reiterate his commitment to prosecution as his first choice. The problem is that we have been saying that for about three years now and there is no real evidence that anybody has tried to prosecute such people. I accept readily what he said about 700 people being arrested in the past year under
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the prevention of terrorism Acts. Many have been charged, some have been convicted and, no doubt, some have trials pending. I know that that is true because quite a lot of my former colleagues are making a lot of money out of those trials. The point is not that terrorists are not being prosecuted; it is that there is nothing to add reality to the Home Office assertion that prosecution is the first choice for those people.
The Home Secretary has told the Select Committee on Home Affairs that the prosecution issues are very fully considered, but, frankly, it is not the job of the Home Office to decide whether people who are suspected of offences should be prosecuted. It is the specific constitutional job of the Director of Public Prosecutions, and the files should be sent to him now.
It is implicit when applying for a control order that a decision has already been taken that a person cannot be prosecuted. That decision must be taken independently, so the Bill should set out explicitly that that must be done. The constitution sets out that the clear way of ascertaining whether a person can be prosecuted is through the Director of Public Prosecutions, so there is no reason not to make use of him.
The Home Secretary said both today and yesterday that he was considering new offences, such as being involved in preparation for acts of terrorism. He will of course consult the DPP about such offences. However, if the DPP were asked to look at the files in great detail and found that he could not make such a prosecution, he would be in pole position to advise on the additional offences, or the widening of admissibility, that might facilitate a prosecution in specific cases. We all sit in the Chamber guessing that intercept evidence, other offences or hearsay might help, but we have no idea. We should get the expert prosecutor to examine the problem now.
Such a procedure would above all prove to the public that an independent eye was being cast over the matter. If the consequence of being unable to prosecute is a control order, it is imperative that it does not look as though the Home Secretary is sitting in a huddle with the intelligence services to decide who will be locked up. It must be plain that the constitutionally charged official has made an independent decision.
I do not know whether the Government fear that it would be politically difficult to put a control order on a person who was prosecuted yet acquitted, and thus "an innocent man". If that is in their mind, it should not be. We put restraint orders on people who are acquitted of domestic violence and harassment, and for centuries we have bound over acquitted people to be on good behaviour if something about their conduct has caused the court to be worried about what they might do in the future. Mentioning the court brings me on to control orders.
I congratulate my right hon. Friend the Home Secretary on grasping the need for proportionality and setting out a list of the possible levels of control that he intends to use only to meet the threat as necessary. Of course such measures will be used sparingly, but they are immensely strong. Hon. Members have cited them, so I will not repeat them all, but instead only mention several.
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It will be possible to put a restriction on people's work or business, presumably by telling them that they cannot carry out their business or go to work. It will be possible to put a restriction on people's association or communication with specified persons, presumably including any member of their families, such as children and parents. It will be possible to put a restriction on people in respect of their place of residence and the people to whom they give access to their place of residence. Presumably people could be told to move house, or told that they could not move to where they wanted. Another person will be able to restrict someone's movements under the aegis of the measures, and it will be possible for restrictions to be put on where people can go in the UK or outside it. It will even be possible to specify a small part of the UK to be restricted to. That measure could presumably ban people from the streets outside their houses, so it would effectively cause people to be locked up in their own houses. The measures will allow people to be tagged and provide that they must agree to allow people into their houses so that they can be searched. People will also be required to give advance information about their movements, if requested.
I have only cited examples. It is quite clear from clause 1 that the Home Office has complete latitude to impose any condition that it sees fit as long as that is necessary to restrict people about whom there are reasonable grounds to suspect involvement in terrorism-related activity. Just about anything can be done under a control order under clause 1 short of house arrest, but that power exists in clause 2, so I guess that the clause covers everything falling short of that.
The Home Secretary has been rightly praised in the round for upping the judicial scrutiny of the powers, but that will not apply to such control orders. This has been said once, but let me say it again pretty clearly, rather than in lawyers' code, so that people can understand it. Unlike the situation under clause 2 for a derogation control order—a locking-up order—when there will be an automatic reference to the court by the Home Secretary within seven days, a control order under clause 1 will be subject to appeal only as and when an individual chooses to make one. The appeal will be based on whether the decision to impose a control order, or find a person to be a terrorist, is flawed. The court is scrutinising not whether the order should have been made, but whether it has been made in the right way.
Therefore, no court will consider whether there are reasonable grounds to suspect that the person is or has been involved with terrorism-related activity. The question of whether the control order is necessary will not be considered. The questions that will be considered are whether the Home Secretary took the right things into account, left nothing out or did not consider something that he should have done when he made his decision. If the decision is quashed, all the Home Secretary must do is take into account what he left out, or leave out what he should not have put in, and make the same decision again, and there is no appeal—it is finished.
My right hon. Friend the Home Secretary said that if the extent of the control order is so stringent that it would take away liberty, it will tip over into the appeal procedure for clause 2. In my view, however, that is not correct at all. The clause 2 derogation-based house
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arrest orders can be made only if there is a derogation. When he makes an order for house arrest, he must refer that fact to the High Court, and the Court must hear it within seven days. Making a house arrest order under derogation triggers the appeal to the High Court, which must confirm or quash the order within seven days. That is the only way that one can get any order into the High Court. One cannot get a control order into it. Only when there is a derogation, which there is not, and there is no intention of having one, and only when there is a clause 2 house arrest order, which there will not be in the case of a clause 1 order, can that appeal follow. There will be no scrutiny of the facts at all, and while I accept that there is better scrutiny for house arrest orders, it is incorrect to suggest that that will be applicable to control orders. The only appeal against the control order will be scrutiny of the decision, which is insufficient, poor calibre and adds enormous weight to the argument that the judiciary must be involved from the outset and not later.
In making that argument, I rely on the fact that the Home Secretary has brought judicial scrutiny much closer with regard to derogation-based lock-up orders. He has accepted that on that case. My argument to him is that if one has the power to make a lock-up order under a derogation, but one must refer it to the High Court, which must confirm it or quash it within seven days, that is only a provisional order and the Court is really making the order.
It is not clear to me—this is probably an unpopular argument in the House, given the atmosphere tonight—that there is truly a great erosion of human rights as between a court ordering a control order and, on the other hand, the Secretary of State ordering a control order with the duty to refer it for quashing or confirmation within seven days, in which case it could be quashed or confirmed within as little as a day. I cannot see a massive erosion of human rights as between those two. Obviously, however, it is of the utmost importance; although technically not necessarily massively important, it has a huge impact on the public's view of exactly what we are doing with such people.
If the true position is that because the Home Secretary must get the control order confirmed or quashed within seven days he has really only made a provisional order, how far away is that from him making up his mind that he wants an order, making an application to the court ex parte and asking the court to make a decision within seven days? It is about two penny worth away, as my mother would have put it, is it not?
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