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Hazel Blears: We have signed memorandums of understanding with three countries. I cannot give the hon. Gentleman the exact number of individuals involved. I am sure that he will understand that these are complex, difficult and sensitive arrangements, but we are determined to continue our negotiations with a range of other countries, to determine whether we can agree memorandums of understanding with them. I was pleased that Lord Carlile's report stated that the memorandums of understanding were appropriate in the context of deportation. When commenting on arguments that it was inappropriate to proceed in this way, he stated:
"It really is a counsel of despair to suggest that no verifiable or satisfactory agreement can ever be reached with apparently recalcitrant countries. There are international organisations and mechanisms available and devisable to ensure an appropriate level of verification, and the effort is certainly well worth making."
The Terrorism Bill that is now before Parliament will introduce some new offences, including the offence of acts preparatory to terrorism, but there will remain a comparatively small number of cases in which we are unable to prosecute but in which individuals pose a very real terrorist threat. In such circumstances, it is vital that the Government and the law enforcement agencies are able to act to reduce the risk that such individuals pose. Again, Lord Carlile has provided support for this view. His report states, in paragraph 61:
"As a last resort (only), in my view the control order system as operated currently in its non-derogating form is a justifiable and proportional safety valve for the proper protection of civil society."
Lord Carlile has clearly thought deeply about these issues, and come to that conclusion. I would like to thank him for the way in which he has conducted his analysis of the information he has seen. As he said in the introduction to the report, he has attempted to give a proper technical analysis of the operation of the Act, but he has tried to do it in a way that is accessible to the lay reader. Technical reports often do not have those characteristics, but Lord Carlile's report genuinely strikes the right balance between good operational information and accessibility. I would also like to thank the Joint Committee on Human Rights, which has produced a very informative report and a detailed reflection of the legislation and its operation. Both reports will be invaluable in informing the House in our consideration of these important issues.
I shall turn now to the working of control order powers. Sections 1 to 9 of the Prevention of Terrorism Act 2005 provide for the making of control orders. Control orders are preventive orders that enable one or more obligations to be placed on individuals that are designed to prevent, restrict or disrupt their involvement in terrorism-related activity. They can be applied to any individual, whether a UK or foreign national, when the Secretary of State has reasonable grounds for suspecting that the individual is or has been involved in terrorist activity and considers that it is necessary for the purposes of protecting members of the public from a risk of terrorism. The grounds that must be set out before an order can be made therefore have two limbsthat an individual is involved in terrorism and that it is necessary to make an order to protect the public. The obligations that can be set out in the order should be tailored to tackle particular terrorism activities on a case-by-case basis. Any breach of those obligations in a control order without reasonable excuse is a criminal offence punishable with a prison sentence of up to five years and/or an unlimited fine.
The Act makes provision for two types of order: derogating control orders and non-derogating control orders. The distinction between the two is that a derogation would be required if the obligations, individually or in total, amounted to a deprivation of liberty within the meaning of article 5 of the European convention on human rights. We have not sought to make any derogating control orders. At this stage, we have simply made non-derogating control orders. The Secretary of State must apply to the court for permission to make an order. Under the Act, in a case of urgency, the Secretary of State himself can make the order, but
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that must be referred immediately to the court, which must start considering that case within seven days. The judicial scrutiny is therefore pretty intense, arising from many of our discussions when the provisions were first considered.
Once the control order is made, an automatic review process is triggered. That judicial review of the Secretary of State's decision provides independent judicial scrutiny. When we considered this legislation previously, the question whether judicial review provided robust examination was debated. Lord Carlile, in paragraph 67 of his report, says that, in his view, judicial review is a robust jurisdiction, and points out that the way in which judicial review has developed means that the courts take a close and rigorous interest in such issues.
Mr. Kenneth Clarke: The Minister is giving an extraordinary description of what she makes sound like a robust judicial process, which was at the heart of the reluctance of both Houses of Parliament to let the Government have the Bill 12 months ago. Will she confirm that, throughout the process, the Secretary of State has to have only reasonable suspicion that he has got the right person and that that person is involved in terrorism, and that a court can set aside what the Secretary of State does only if the judge is satisfied that the Secretary of State's decision is seriously flawed? Therefore, as long as the Secretary of State can say that he has reasonable suspicions and grounds to suspect that someone is involved in terrorism, there is little that the court can do.
Hazel Blears: I am aware that the right hon. and learned Gentleman has extensive legal experience, and he will know, as I do, that the courts take their responsibilities on judicial review extremely seriously. We had a long debate on what the appropriate standard of proof should be. For non-derogating orders, we decided that it should be reasonable suspicion. Were there to be derogating orders, we decided that it should be on a balance of probabilities, because the standard of proof should be higher. That was debated at great length in both Houses of Parliament, and the legislation was passed on the basis of that standard of proof. As he will know, the courts will need to consider whether the Secretary of State acted reasonably in coming to his conclusion, whether he took into account all relevant considerations, and whether he excluded all irrelevant considerations. He will also know that judicial review is no rubber-stamp process and entails rigorous consideration by the courts. Indeed, Lord Carlile expresses that view from an independent standpoint.
Once a control order is made, the automatic review process is triggered. Control orders have a maximum duration of 12 months, and can then be renewed by the Secretary of State. After 12 months, however, a separate right of appeal is provided, which is another safeguard. An individual can also make an appeal for an order to be revoked or an obligation to be modified when there is a change in circumstance. Again, a separate right of appeal is provided when the obligations are variedanother safeguard built into the system. I therefore feel that the Act provides full judicial oversight and proper rights of appeal.
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In addition to those individual rights, there are reviewing and reporting requirements, including an independent review by Lord Carlile and the report that the Secretary of State must bring to Parliament every three monthswhich he has done on three occasions so far, I thinkon his exercise of the powers, giving information such as how many orders have been made. The system contains robust safeguards, subject to reporting requirements and independent oversight. A delicate balance must be struck between safeguarding society and safeguarding the rights of the individual, and I think that the 2005 Act strikes that balance.
David Taylor (North-West Leicestershire) (Lab/Co-op): The Minister will know that the report from the Joint Committee on Human Rights focuses on the human rights of the families of individuals affected by control orders. It speaks of the unjustifiable interference that often takes place, the severe impact that it has on the human rights of those family membersrights to family life, freedom of association and freedom of expressionand the mental suffering and anguish to which they are often subject. What rights will those family members have in respect of the establishment of a more satisfactory regime?
Hazel Blears: The Secretary of State considers the impact on family rights before making a control order. He has information about those important issues. Representatives of families have raised them with the courts, and they can be considered by the courts when each case is automatically reviewed.
Family rights are important, but they are part of that delicate balance between safeguarding the rights of the individual and safeguarding the rights and security of the wider community. I understand the implications for families, but we are dealing with people who are deemed to be a threat to national security, who cannot be prosecuted or deported but whose activities need to be controlled to protect the security of the nation.
The renewal debates here and in the other place are a further requirement of the Act. Affirmative resolution is required in both Houses of Parliament. The debates give all Members an opportunity to consider Lord Carlile's report and the merits of control orders more generally.
Lord Carlile made recommendations for improvement in the operation of the control order regime, including a procedure to monitor closely the necessity and proportionality of control order obligations and fuller information from the Government on why a prosecution cannot replace a control order. My right hon. Friend the Home Secretary has welcomed the recommendations. He has said that he will need to consider them after consulting the Intelligence Services Commissioner and the director general of the Security Service, as required by the Act.
The first of the two main recommendations concerns the procedure for monitoring and reviewing the obligations. We accept that there is scope for additional review of the obligations throughout a control order's life cycle, and we are discussing with our stakeholders how best to achieve that. We think that the second recommendation is sound in principle, but we shall want to examine the operational implications.
Without the order, the power to make control orders will lapse at midnight on 10 March 2006. Under the order, it will continue until 10 March 2007. As I have
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said, it requires approval by both Houses. The Government strongly believe that control orders are an essential element of the range of measures that are necessary to address the continuing threat posed by terrorism, and that belief is supported by Lord Carlile.
"is sufficiently alarming for me to re-emphasise, as I have in other reports, the real and present danger of shocking terrorism acts involving suicide bombings . . . further suicide bombings in the UK must be expected and the target unpredictable".
Those are indeed chilling words, and it is crucial that we never underestimate the threat that we now face. Control orders are one of a number of options that the Government are employing to counter the very real threat of terrorism. They have an essential role to play, not just in countering the threat but in contributing to a more hostile environment for terrorists. Any Government's first consideration must be protecting the security of the nation.
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