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(8) The court shall not impose any obligation under subsection (7) unless it is satisfied that the following conditions apply:
(a) that the obligation is necessary for the purposes connected with protecting members of the public from the risk of terrorism;
(b) that the same purposes could not be achieved by less restrictive means; and
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(c) that the obligation is consistent with the defendant's Convention rights within the meaning of the Human Rights Act 1998 (c. 42).
(9) The Secretary of State or the defendant may apply to the court which made the control order for it to be varied or discharged by further order.
(10) For the purposes of this Act, involvement in terrorism-related activity is any one or more of the following:
(a) the commission, preparation or instigation of acts of terrorism;
(b) conduct which knowingly facilitates the commission, preparation or instigation of such acts, or which is intended to do so; and
(c) conduct which knowingly gives encouragement to the commission, preparation or instigation of such acts, or which is intended to do so.
(11) Evidence established to have been obtained under torture shall not be admitted in any proceedings.'.
Mr. Griffiths: I rise with some trepidation to support the amendment, the 47 others in the group and new clause 1, which all relate to decisions made by a court through the judicial process rather than by the Secretary of State as the person in the Executive arm of Government responsible for such matters. I am keeping in mind both the letter that has been distributed to us, as it is bound to have some bearing on the debate, and the fact that when we discussed these issues during the passage of the Anti-terrorism, Crime and Security Act 2001, I voted for procedures that have since been declared illegal. I feel, therefore, that I need to explain—although not at length—why I have come to a different opinion.
In the appalling aftermath of the terrible twin towers incident in New York, there seemed a pressing and urgent need to do something significant to cope with what seemed an immediate danger. Some people may say that because nothing has happened in the United Kingdom over the past few years I am getting complacent, but that is not the case. I am moving the amendments in the context of the fact that it appears that our intelligence services are doing a good job in maintaining their monitoring of the potential terrorist threat. I wish them well and applaud all that they are doing in that regard. Obviously I do not want any form of terrorist activity in the UK to come to a terrible successful conclusion. However, I am also aware that the terrorist threat is no longer a one-off, but will be a significant experience for perhaps months or years. While the middle east remains a festering sore on the human political and social condition, there is a danger that the threat of terrorism will continue. In other words, it could be around for a long time. So issues relating to putting suspected terrorists under some form of house arrest imprisonment or other non-derogating actions to control the potential terrorist threat—
Mrs. Anne Campbell (Cambridge) (Lab): Can my hon. Friend clarify whether his amendments would apply to non-derogating control orders as well as to derogating control orders?
Mr. Griffiths:
I do not know whether I was fortunate or unfortunate in being the first Member called to speak, but my amendments cover both derogating and non-
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derogating control orders. It is important that the whole process be subject to a legal decision when the Secretary of State makes an application for action to be taken.
Mr. Simon Thomas (Ceredigion) (PC) rose—
Mr. Griffiths: I give way to my colleague from Wales.
Mr. Thomas: Has the hon. Gentleman had the opportunity to read the letter from the Home Secretary on these matters? Does he feel that the letter answers the concerns set out in his amendment? My reading of the amendment is that it goes wider than the letter, which relates only to derogating orders. Will the amendment tackle the difficulty, admitted on Second Reading last week, that a combination of non-derogating control orders could amount to a deprivation of liberty and thereby become an issue that should go before the courts or invoke the need to derogate from the convention on human rights? Does he feel that the amendment overcomes the problems that I still have, as perhaps does he, with the letter from the Home Secretary?
Mr. Griffiths: On the basis of what is in the Home Secretary's letter, I am still waiting for an explanation and a filling out of exactly what is meant in terms of the non-derogating orders. My own position is that there should be a proper legal process in both cases because that would cover the point about some of the non-derogating issues, perhaps when put together, really being derogating ones.
Mr. Hogg: The hon. Gentleman has just made the point that there should be a proper legal process. Does he understand that he is only taking a small step by substituting the judge for the Home Secretary? The real problem is that even if the judge makes the decision, that is a not a proper legal process, because the detained person does not know the evidence, does not know the identity of the informer, is not properly represented, cannot see the evidence and cannot ask questions of counsel.
4.45 pm
Mr. Griffiths: If the right hon. and learned Gentleman has read new clause 1, which I tabled, he may see in that perhaps an imperfect attempt to try to deal with some of the issues that he raises. In new clause 1, I propose the setting up of a court of terrorism control, where between three and six judges could meet to consider what the Home Secretary has said and decide exactly how to proceed in handling the evidence. I admit that I am a layman, not a lawyer, but I believe that that would give the court the opportunity to decide how to handle the evidence and whether it needed the clarifications to which the right hon. and learned Gentleman refers. I will come back to that later on.
David Winnick (Walsall, North) (Lab):
As someone who broadly supports what the Government intend to do, does my hon. Friend agree that although the Home Secretary has undoubtedly made a move in view of the concern expressed last week so far as derogating orders are concerned—they will have to be initiated by a judge,
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which is certainly a step forward—it is unfortunate, however, that there has been no progress at all on non-derogating control orders, which relate to issues other than house arrest, as he knows, such as tagging and the rest of it? The Home Secretary's letter simply says that the person involved can apply very quickly to the courts. Surely a person should be subject to a control order only as a result of court action. That is a very important point. Does my hon. Friend not agree?
Mr. Griffiths: My hon. Friend will be aware that I am speaking now because amendment No. 4 deals with that very point. I look forward to an expansion in what the Home Secretary has to say about the matter. Given that he has already conceded that on derogating orders the judge's role should be primary, perhaps there is room for the debate to develop on that point in a similar fashion.
Sir Patrick Cormack: In view of the fact that the Home Secretary has indicated that he would be happy to speak at an early stage, and as we are in Committee and the hon. Gentleman can take part in the debate again, would it not be a good idea if we heard from the Home Secretary very soon?
Mr. Griffiths: That is a very good idea, and I am bearing it in mind. Of course, hon. Members have made a couple of interventions on my speech, which has slowed me down, but in the light of the letter and the conversations that I have had this morning on some of these issues, I certainly do not intend to make the speech that I was planning last night—although I believe that it is necessary at least to refer to some of those matters before I sit down.
The first issue is the House of Lords judgment that, of course, precipitated the need for this debate and these changes in the law. The one simple point that I want to make about that judgment is that it has two significant parts, the first of which relates to the discrimination between nationals and non-nationals in the United Kingdom, and the second of which is that the Law Lords felt that the response was not proportionate to the threat that we face from terrorism. Of course, we could debate that at some length, but I feel that, all in all, the decision not to use the courts in the first place was wrong. Therefore, the Law Lords were right to say that the provision to set aside the courts as the first place to take such matters was disproportionate. That is why I tabled the amendment.
Since then, we had over the weekend the report from the Joint Committee on Human Rights. It makes some clear recommendations. Without mentioning each one in detail, I wish to refer to paragraphs 11, 12 and 13 that refer, in particular, to the
They make it absolutely clear and without any doubt whatever that the law as we have it and as it is proposed under the Bill contravene—
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