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Patrick Mercer: That would of course be a much better solution. If people were committing criminal acts, it would be much better if they were arrested, prosecuted and sent to prison. I am interested to know whether the Minister sees any overlap between what Lord Carlile said and the working of the control orders. I hope that that answers the hon. Gentleman's question.
Mr. Winnick: I did not get the impression from Lord Carlile that the people concerned were actually committing a crime as such, but their sermons are undesirable, to say the least. It is a rather sensitive subject, involving worshippers as it does, and we have to be careful not to make martyrs where that can be avoided. However, I am in favour of control orders.
Patrick Mercer: I was not at the Committee sitting, but I appreciate the hon. Gentleman's comments. I would also be interested to hear what the Minister has to say on that subject.
I turn to the practical working of control orders. I wonder whether the limited surveillance resources that we have allow control orders to be exercised properly. I have heard from some of the individuals involved in mounting such covert and overt operations that such matters as the working time directive make covert surveillance very difficult. Can the Minister give me an indication of whether we have enough resources to carry out the surveillance for the number of control orders that she has mentioned so far?
That question leads me to speculate about the limited number of infringements of control orders. While I am delighted that such infringements are very few, I am cynical, because I have been involved in such matters in the past, and I wonder whether infringements simply have not been detected because of the lack of resources available for surveillance. I appreciate that I may be treading on ground of which the Minister is not necessarily aware in great detail, but I would be grateful if she would reply, verbally or in writing.
We have been told that the Joint Committee on Human Rights has five distinct reservations about the control order regime as it stands. First, the Joint Committee questioned whether a renewal should be
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allowed without Parliament having had the opportunity to debate whether a derogation to permit deprivations of liberty that challenge article 5.1 of the European convention on human rights should be allowed. That is the point that my right hon. and learned Friend the Member for Rushcliffe made earlier.
Secondly, the Joint Committee asked whether procedural protections are compatible with article 5.4 of the ECHR and the right to a fair trial in determination of a criminal charge and to a fair hearing in the determination of civil rights under article 6.1. Thirdly, it asked whether controlees are being subjected to inhuman and degrading treatment, contrary to article 3 of the ECHR. Fourthly, the Joint Committee wondered whether the control order regime has a disproportionate impact on the rights of family members—we have already heard about that particular proviso—under articles 8, 10 and 11. Lastly, it asked whether the control order regime is being applied disproportionately to foreign nationals in breach of article 14 of the ECHR. Those are serious charges against the control order regime and I would be interested to hear how sure the Government are that they could survive a challenge in the courts on whether they are able to derogate from those aspects of the ECHR, or whether they would get egg on their face. Again, if the Minister can give me some reason to feel confident about that it would reassure me.
We view the control order approach only as a temporary measure, to be replaced by proper judicial process. That is why it needs to be reviewed constantly, kept to a minimum and eventually replaced. The Minister is aware of the consensus produced by the attacks of 7 and 21 July and I am reluctant to destabilise it, but I must make it clear that our lack of opposition to this renewal is based on the fact that we see it as a temporary measure. I hope that the Minister can reassure me.
In a speech on 2 February, the Home Secretary referred to the Government's attempts to find a legal model to provide the necessary safeguards to allow intercept material to be used as evidence in court. That will allow us further to minimise the use of control orders and, I trust, to get rid of them completely in due course. My experience of the use of intercept makes me aware that we must be extremely careful to defend technology, techniques and sources. Of course, my experience of those techniques is about 10 years out of date and I have no doubt that both time and technology have moved on, but if intercept evidence is admissible in court, we shall be able to obtain more prosecutions and fewer people will be held under control orders, so I welcome what the Home Secretary said about it. Any further light that the Minister can throw on the matter will be welcome.
We have already referred to memorandums of understanding, about which I have two questions. First, how will the Government deal with an illegal challenge to deportation under the ECHR, where an MOU has already been achieved? There will be difficulties in achieving more than the few MOUs to which the Minister has already referred so, secondly, how will the Government deal with controlees whose parent country fails to agree on an MOU? What will happen to them?
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In paragraphs 71 and 72 of his report Lord Carlile says that it would not be acceptable for significant restrictions on liberty to continue for years on end. If the MOUs cannot be agreed, what course of action will be open to the Government? How will they bring themselves into line with Lord Carlile's statements in paragraphs 71 and 72?
I welcome the Home Secretary's intention to simplify and consolidate terrorism legislation. That is the building brick for Conservative Members, because too many laws lie unused and too many hastily designed laws are used for inappropriate purposes. Despite the different stories in the press, I hope that we can try to move forward on a consensual basis for the remaining period of the legislation, so I am delighted that the Chancellor seems to be edging towards the creation of a single budget for security purposes. I have no doubt that that will lead to a single Department and a single Minister. If the Government are heading in that direction, I could not be more delighted, and on that aspect they will enjoy consensus in full measure and my 110 per cent. support.
Although we shall not oppose the further extension of the control order regime by 12 months, I accept the conclusions of Lord Carlile's report and I understand that control orders must be replaced by a proper judicial process. I look forward to effective legislation that will defend not just the lives of our constituents but their liberties as well.
5.59 pm
Mr. Alistair Carmichael (Orkney and Shetland) (LD): First, I acknowledge the contribution made in preparation for the debate in the report by my noble and learned Friend Lord Carlile of Berriew and in the trenchant report issued yesterday by the Joint Committee on Human Rights. Both take a careful and detailed look at the subject. The tone of the two reports is not necessarily immediately compatible, but it is clear on a close reading that their conclusions have a great deal in common, even though they may not be expressed with the same force.
It is worth reminding the House of the parliamentary history that has brought us to where we are today. On 16 December 2004, the House of Lords ruled that the detention of the nine foreign nationals held at Her Majesty's Prison Belmarsh was incompatible with the European convention on human rights. The powers created by the Anti-terrorism, Crime and Security Act 2001 were found to be in breach of ECHR on two counts. First, they only offered the possibility of indefinite detention where lesser restrictions on liberty could have been more proportionate. Secondly, they were discriminatory by reason of the fact that they applied only to foreign nationals. Either the detainees would be released, or new and proportionate restrictions had to be devised in the space of a few weeks.
What we got was a rushed and controversial Bill. We performed our own version of the parliamentary "Nessun Dorma", as I recall, and we went from Second Reading to Royal Assent in just two and a half weeks. Our preference at the time—indeed, this was the Home Secretary's stated preference—was to find ways to prosecute such suspects in the criminal courts. Given the impending renewal of the derogation order, a stop-gap
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had to be found. I remind the Minister that we were willing to co-operate in finding an appropriate interim measure and that we started from the premise that control orders were acceptable on that basis, provided that the appropriate safeguards could be found.
We had serious reservations on two points, however. We believed that the standard of proof required for the Secretary of State to sign a non-derogating control order was too low and that the standard of proof should have been raised to that of whether an offence had occurred on the balance of probabilities. We also argued that the power to impose a non-derogating control order should reside with the court, not the Home Secretary.
Those points were echoed by the Joint Committee's report yesterday. On the first point, it said:
"As far as non-derogating control orders are concerned, reasonable suspicion is in our view too low a threshold to justify the potentially drastic interference with Convention rights which such orders contemplate."
On the second point, the Committee said:
"We agree with the view expressed by the European Commissioner of Human Rights, that Article 6 ECHR properly requires that non-derogating control orders should initially be made not by the executive but by the judiciary. We also consider that our own constitutional traditions of due process, and of the separation of powers between the executive and the judiciary, requires no less."
The Committee, however, reserves its strongest criticism for the way in which the various restrictions on liberty available to the Home Secretary in designing a control order have been used. The Committee makes a strong case that the impact of the restriction on liberty is so severe that, in fact, it breaches several of the convention's articles.
Lord Carlile very helpfully provided a standard list of control order restrictions as an annexe to his report. He notes:
"The obligations include an eighteen hour curfew, limitation of visitors and meetings to those persons approved by the Home Office, submission to searches, no cellular communications or internet, and a geographical restriction on travel."
If that regime is being imposed on controlees, with little or no variation to account for different risks and different personal circumstances, the Committee is surely correct to state that the obligations are
"so restrictive of liberty as to amount to a deprivation of liberty for the purposes of Article 5(1) ECHR"
Thus a deprivation of liberty is taking place without due legal process, contrary to the convention requirements. Similarly, the Committee believes that individuals are being denied a fair trial under articles 5.4 and 6.1, that control orders
"carry a very high risk of subjecting those who are placed under them to inhuman and degrading treatment contrary to article 3",
that there is strong evidence to suggest that the regime
and that the law impacts disproportionately on foreign nationals and is therefore in danger of breaching article 14. In fact, that is the very point that started our parliamentary journey with the judgment in 2004.
Let us also remember that the whole point of control orders was to remove the need for a derogation under the ECHR. The Act contains powers for the Home
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Secretary to issue a derogating control order. We were given to understand that that meant 24-hour house arrest, but that a vote of Parliament would be necessary to approve a formal derogation of the sort that was required by the Belmarsh legislation. The Act, however, neglected to set out any criteria for determining the dividing line between the control orders that would require a derogation and those that would not. This is a question that will ultimately be tested in the courts. In the meantime, can the Minister tell me where she thinks the line lies? What legal advice has she received and how sure can she be that the pro forma list of restrictions that was reproduced in Lord Carlile's report does not cross that threshold?
The Minister has prayed in aid Lord Carlile's report a great deal tonight. The truth is, however, that it is not the glowing endorsement that she claims it to be. Lord Carlile expresses very serious concerns about the question of proportionality. He says:
"On any view those obligations are extremely restrictive. They have not been found to amount to the triggering of derogation, indeed there has been no challenge so far on that basis—but the cusp is narrow."
Of course, the Home Secretary could have chosen to treat these control orders as meeting the threshold for derogation, in which case the higher safeguards in terms of the standard of proof and the role of the court would have applied. On what basis was the decision not to do that taken? The Minister may not be able to answer that question tonight, but I suggest that it is something that the Home Secretary should inform the House about. I hope that if he does not do so by placing information in the Library, he will, as is customary, do so in a letter to myself and the hon. Member for Newark (Patrick Mercer).
As we have heard, Lord Carlile does not call for a derogation but for
"the establishment of a Home Office led procedure whereby officials and representatives of the control authorities meet regularly to monitor each case, with a view to advising on a continuing basis as to the necessity of the obligations imposed on each controlee."
I hope that that will be acted upon with rather more dispatch than the Minister indicated in her speech. There is not a great deal of time; a great deal of urgency is attached to the matter.
I again make the point about prosecution that I made to the Minister in an intervention earlier. Lord Carlile says:
"I have seen letters from chief officers of police in relation to each controlee certifying that there was no realistic prospect of prosecution. Little is given by way of reasons."
Is that not reminiscent of the situation that we had with the Belmarsh detainees? Some of them were detained for several years, yet answers to parliamentary questions indicated that the police conducted no ongoing investigation during that time with a view to bringing them to trial. That demonstrated a complacency on the part of the Government. Once these extraordinary powers are in place, there is surely a moral duty on the Home Secretary to pursue prosecutions. That is the undertaking that we have always been given in the House. In the case of the 2005 Act, there is a statutory duty and it concerns me that the Home Secretary does not appear to be fulfilling it.
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Neglect would also be an appropriate word to describe the unintended consequences of the Act on the innocent families of those who are subject to control orders. That is the point on which the hon. Member for North-West Leicestershire (David Taylor) intervened on the Minister earlier. She cannot afford to be complacent or blasé on that issue.
The annexe attached to Lord Carlile's report reveals another interesting fact. Hon. Members will have noted that it shows that there is essentially a fill-in-the-gaps exercise that allows the Home Office to tailor a document to include details such as a suspect's address and a list of individuals with whom he is not allowed to communicate. I was rather surprised to read the following examples of statements that are used:
"You shall not outside of the residence . . . attend any pre-arranged meetings or gatherings (other than attending, but not leading, group prayers at a mosque)"
"You shall only attend one mosque of your choosing, subject to prior approval from the Home Office before your first visit."
The system seems pretty much like one designed for Muslims. It is unfortunate that the hon. Member for Leicester, East (Keith Vaz) is not in the Chamber because he said during our earlier debate on the Terrorism Bill that in his experience, which is probably more substantial than that of anyone else in the House, the Muslim community was beginning to feel persecuted by the nature of the Government's terrorism legislation. When one sees conditions framed in such terms, one can certainly understand why. Why are not more neutral phrases used, such as "place of worship", instead of "mosque"? Do not the documents lend credence to those in the community who argue that the Government's anti-terrorism powers are used disproportionately against Muslims? Will such an approach build the inter-community harmony on which the Government put so much stress?
The Government's approach to terrorism is a mess—it has been a mess since November 2001. We want to hear from the Government how we shall get out of that mess. In the closing debate on the Prevention of Terrorism Bill, the Home Secretary produced a timetable for further legislation that would have given the House the opportunity to consider in detail and change the control orders regime. A commitment was given to produce a draft Bill in the late autumn of 2005 and introduce a substantive counter-terrorism Bill in spring 2006. The events of 7 July led to renegotiation among the three main parties. It was agreed that control orders would be decoupled from other new offences and considered in a separate Bill in the early part of 2006.
The Home Secretary indicated in his statement on 2 February that he favoured a further rethink, with draft legislation produced in spring 2007, followed by a Bill that would almost certainly be carried over into the next Session. I have no difficulty with the concept that a consolidating Bill is necessary. Such a Bill is inevitable because of the extremely rushed way in which we deal with much of the terrorism legislation that comes before the House. It is almost certainly inevitable as a result of the way in which the Government use programme motions, which mean that Bills do not receive proper scrutiny. The principal reason given for the time scale
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was the fact that the various reviews on the definition of terrorism needed to be concluded, but the definition is not central to the operation of control orders, although it is central to other measures, such as those in the Terrorism Bill.
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