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Mr. McNulty: Not the hon. Gentleman’s last point. I had the good fortune of making a subsequent speech at RUSI during the same event, but it was more readily on these matters than on the Human Rights Act 1998. My noble Friend the Lord Chancellor said that the Act was a shield in defence of democracy and against the terrorists—a very important point to make. I quite understand why the hon. Gentleman would, from his own perspective, choose to pick out from the Lord Chancellor’s speech that which would accord with his own argument—I fully accept that; it is entirely fair—but the hon. Gentleman should not hold his breath if he thinks that somehow soon the Human Rights Act is going to fall away from the statute book. There are a number of substantial reasons why that should be the case. The issue clearly underpins much of our deliberations today, but you will know, Mr. Deputy Speaker, that this is not a debate on the pros and cons of the Human Rights Act, although it has some bearing on the case.
No one is pretending, as I said, that control orders are 100 per cent. effective. I emphasise the inevitable and real risk, given the unsatisfactory nature of the control order regime, that individuals on control orders will re-engage in terrorism or abscond. Indeed, as the House will know, there have already been three well publicised absconds, but Lord Carlile addresses the point cogently in his report in paragraph 59, where he states that
“the disappearance of a small minority does not necessarily undermine the benefits of the orders in relation to the majority”.
More encouragingly, the police, prosecution authorities and the courts take enforcing control orders seriously. In January, the courts sentenced an individual to five months’ imprisonment for breaching his control order. Charges against other individuals are pending.
Fiona Mactaggart (Slough) (Lab): Do any of those charges relate to the three people whose control orders have been in place since March 2005 and September 2005 respectively? I am talking of the three long-standing cases that are referred to in the Carlile report.
Mr. McNulty: The short answer is that I do not know specifically. If, during the course of our debate, I receive some inspiration, I will slide it into my remarks at some stage. In general terms, I have deliberately not gone down to that level of detail for a debate of a mere hour and a half. I just want to present the highlights of the arguments for the order rather than get into the specifics. I will gladly let my hon. Friend know the answer in another way, if necessary.
We think that the need for the powers is clear. Parliament can also be reassured that a comprehensive set of safeguards is in place under the Prevention of Terrorism Act 2005 to ensure the appropriate use of the powers. Indeed, we remain firmly of the view that the legislation and the order before us today are fully compliant with the European convention on human rights—if I may say that with the hon. Member for Stone (Mr. Cash) in his place.
The 2005 Act provides full judicial oversight and rights of appeal. The courts must give permission for the Secretary of State to make a non-derogating
control order or confirm within seven days an urgent control order made by the Secretary of State—and I should add that that power has not been used at any stage thus far. There is automatic, independent judicial review of the decision to make or renew a control order. Individuals subject to control orders can appeal the Secretary of State’s decision to modify a control order and apply themselves to have one revoked or modified where there is a change in circumstance and the Secretary of State’s decision can be appealed.
In the past, some people have questioned the sufficiency of the safeguards put in place by the 2005 Act, but events over the last year demonstrate the robustness of those safeguards. Hon. Members will be aware that the judiciary has been actively overseeing the Act, which is right and proper.
First, we welcome the Court of Appeal’s conclusion in August 2006 that the judicial review procedure within the Act was compatible with article 6 of the ECHR, which deals with the right to a fair trial. That overturned an earlier High Court ruling against the Government. Secondly, the Court of Appeal upheld an earlier High Court decision that the particular control orders imposed in respect of six individuals breached article 5 of the ECHR on the right to liberty. We have appealed and both those points of law will now be heard before the House of Lords.
Thirdly, there have now been three control order review hearings in which all the substantive evidence has been put before the courts. Previous hearings had dealt only with legal issues. The High Court handed down judgment on the first such case last Friday. We were of course disappointed that the judge chose to quash the order when the judge himself agreed that the individual was reasonably suspected of being a terrorist, and that the decision to keep the individual under a control order on an ongoing basis was necessary. We will appeal against this decision. Meanwhile, to protect the public, we have made a new—but, inevitably, weaker—order against this individual in the light of the judgment.
Jim Cousins (Newcastle upon Tyne, Central) (Lab): My hon. Friend has just used the term “reasonably suspected”. He will be aware that the test of reasonable suspicion has caused some concern. Does he propose to revisit the issue of the burden of proof and perhaps to lay down clearer safeguards?
Mr. McNulty: I think that the safeguards are clear. The threshold test involved in establishing reasonable suspicion is very clear. It has been judged and tested on any number of occasions throughout the judicial process and it has not been found wanting. So I am not entirely sure that my hon. Friend’s point is a reasonable one.
I know that the right hon. Member for Haltemprice and Howden (David Davis), the shadow Home Secretary, has spoken to the Home Secretary about the case that has been alluded to. In that judgment—an open judgment, which is why I can talk about it—reference was made to evidence from Belgium in a similar case that pointed to there being sufficient admissible evidence for a prosecution. I can tell the House, however, that the CPS and the police have
looked at the evidence in considerable detail—because it was in the judgment—before imposing the second, weaker, control order. They found, however, that the evidence from the Belgian case was insufficient to be considered admissible for a prosecution in the case of that individual.
Mr. Cash: In view of there being very few Members here, I hope that the Minister will not mind if I refer to certain matters, all of which went through the House of Commons literally overnight only a short time ago. Would not this problem have been avoided if we had legislated here in Westminster on our own terms, excluding the application of the Human Rights Act 1998, to deal with these extremely important matters, as well as providing for the full application of habeas corpus and ensuring a proper right of liberty for the alleged suspects—which I would insist on, as would the courts—instead of leaving ourselves with this extremely expensive and protracted legislation for the sake of an ideology?
Mr. McNulty: With the greatest respect to the hon. Gentleman, that is not the case. It would not be right to suggest, from whatever perspective, that we are having to sort things out in this twilight zone, in which people are sufficiently suspected but there is insufficient evidence, only because of the Human Rights Act and the ECHR. That is not the case. Even if we were operating in a completely ECHR-free zone—as the hon. Gentleman would like—these would remain extremely complex legal difficulties. It is wrong to suggest that we are in this twilight zone of control orders simply because we are working against the backdrop of the ECHR and the Human Rights Act. These are difficult and complex circumstances. Contrary to what many critics suggest, there is only a very small number of these cases. That in itself is not a virtue, but the notion sometimes put about that these provisions have universal application and are somehow a prelude to quasi-internment is simply not the case. We are simply seeking to renew the order, as I have said.
We are constantly seeking to improve the way in which we administer control orders, and Lord Carlile’s new report includes some specific recommendations which we will consider carefully, consulting interested parties as necessary. We will respond to the noble Lord in due course. The recommendations include suggestions of areas for possible legislative amendment, which we will of course examine. In addition, Lord Carlile notes the need for an exit strategy, so that individuals are not subject to control orders indefinitely. Control orders are valid only for a maximum of 12 months at a time.
Indeed, following Lord Carlile’s recommendation last year, we established the control order review group to keep all control orders under quarterly, formal and audited review. This helps to ensure that obligations in control orders remain tailored to the individual, and that they are necessary and proportionate. If the individual is no longer considered to represent a significant risk, the control order would be revoked. As part of the review group’s work, a fresh look is being taken at whatever body of evidence is available in relation to the ability to prosecute. That is part of its work.
Lord Carlile also states his belief that there is a need for thorough, documented consultation in every case as to whether a prosecution could be brought against individuals subject to a control order. That relates to the point raised earlier by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham). Following Lord Carlile’s recommendations, we are looking in some detail at all the administrative and more general processes in relation to establishing a more detailed audit trail between the CPS and the police, in order to make a full assessment of the evidence presented by the police if it is just short of being admissible.
Mr. Denham: My hon. Friend may or may not share my enthusiasm for some elements of the French system in this context. As he will know, in France there is often a three-way meeting between the police, the investigating magistrate and the justice department, at the stage when the files are looked at. A tactical and strategic decision is then taken whether to proceed to detention, as the French often do, or to allow the investigation to run further—perhaps for two or three months—in the hope of obtaining prosecutable evidence. I hope that the review will allow the British system to evolve in that way. If the proper audit trail showed that a prosecution could not be mounted, but that it might be possible in a few months if extra evidence had been accumulated, it should be possible to take the decision to allow the investigation to run.
Mr. McNulty: I think that that is broadly right, in the sense that much of what my right hon. Friend describes does pertain, albeit not as formally as suggested by Lord Carlile. Lord Carlile referred to cases in which there was a real threat but very little evidence, resulting in the exchange between the CPS and the police being almost perfunctory. Such cases need to be looked at in more detail. Without being privy to the details of every single discussion between the police and the CPS, I am sure that the process will evolve in the way that my right hon. Friend has suggested. This relates to the tactics involved in issuing a control order immediately, and the need to strike a balance between having more time to gather evidence in the hope of being able to prosecute, and the real public safety threat that endures at the same time. This is always a matter of balance. The review will look at all these elements, and we will ensure that the House is kept up to date on our deliberations, either through our regular report on control orders or through some other channel. That is an entirely fair point, as is Lord Carlile’s broader point about an exit strategy and about keeping those elements constantly under review.
The Secretary of State always consults the police, before making an order, on whether there is evidence available that could realistically be used for the purposes of a prosecution of the individual for an offence relating to terrorism. But the Government, with the police and the CPS, will review procedures for consultation in the light of Lord Carlile’s recommendation. The only thing that I am not sure about, in relation to the point raised by my right hon. Friend, is the constitutional point that the Home Office, the CPS and the police would all have to sit down together to consider each and every case. The Home Office is the strategic safeguard of the law, and
these cases are certainly a matter for the police and the CPS. I will keep the House informed of any developments.
To sum up, although unsatisfactory, as I have said, it is the Government’s belief that control orders are necessary to address the continuing threat posed by terrorism. That belief is supported by Lord Carlile in his annual report. He explicitly reiterates his conclusion from his previous report, stating:
“I remain of the view that, as a last resort (only), 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.”
The Government’s role, first and foremost, must be to protect the public. Control orders help to achieve that while maintaining the necessary safeguards to protect individuals’ rights. They are focused, almost by definition, on a very small number of individuals, but, none the less, given the seriousness of the conditions imposed, it is right and proper that there are judicial and parliamentary safeguards on the scheme. It is necessary to renew it for a further year and I commend the order to the House.
1.20 pm
Patrick Mercer (Newark) (Con): I am grateful to the Minister for reintroducing this piece of legislation. The most focusing thing that he said was his reminder that the threat level is still at severe; he also reminded us of the successes of our intelligence and security agencies. May I add my congratulations to those agencies? We owe a huge debt of gratitude to the men and women who keep us safe in a hugely under-sung way on a day-to-day basis. I suggest to the Minister that, from time to time, it would be nice to hear officially, as much as we can, about those successes. They are terribly important.
The Minister knows how deeply uneasy I am about the control order regime and I suspect that he shares some of that unease. A lot of his language was revealing. He talked about weaker control orders and the unsatisfactory nature of the control order regime. I understand that he has reservations, like everybody else. My personal views are based on the fact that detention without trial, which the control order regime replaced, was hugely unsatisfactory. He referred to it as perhaps a quasi-internment. I saw the effects of internment. I saw the effects of men and women who were released after months in detention without charge and the damaging influence that they had on the counter-terrorist campaign in Northern Ireland. One of my objections to control orders, among many others, is that they impose a sort of terrorist ASBO status on the individual. Those individuals cannot help but become iconic in the communities to which they return.
Bearing in mind the Minister’s reservations, I think that Lord Carlile’s annual report makes many points that are deeply damaging to the system that we have at the moment. I must remind the Government that, after the collapse of their anti-terrorist measures as a result of their incompetence in dealing with their own Human Rights Act 1998, we gave them the chance to continue and to put in place a system that would work. Clearly, this system does not work and it has to be
replaced by something competent. [ Interruption. ] I hear the Minister saying that it works, but there have been a series of shambles.
First and foremost, there were the three absconders. One escaped from a hospital due to a lack of resources and surveillance. One absconded immediately after the quashing of one order, before the next order could be served. That caused Lord Carlile to say:
“In the future there should be provision for this eventuality—in the sense that there should be minimum delay”.
The third person absconded after being served with orders. He entered a mosque and apparently disappeared, and yet the police did not pursue him. I am open to correction from the Minister on that point.
It strikes me as particularly odd that we thought that those people posed a sufficient threat to the safety of our citizens to warrant putting them on this curious and deeply intrusive form of detention, and yet when they abscond, we get strange comments from the Home Office. For instance, the Home Secretary said:
“The individual is not believed to represent a direct threat to the public in the UK at this time.”
Why was that individual on a control order? Why bother? As my memory serves, the individual had proclaimed the fact that he intended to carry out jihad and to try to make himself into a suicide bomber elsewhere. When the Opposition suggested that the individual should be named and identified, the Home Secretary said—I repeat:
“The individual is not believed to represent a direct threat to the public in the UK at this time.”
What about the British public not in the UK: namely, our soldiers, sailors and airmen serving abroad? It is entirely possible that that individual could have directed his attacks against them. Why was it not possible to identify that man—and others in a similar position—and publish his photograph? I suggest to the Minister that that is shambolic.
Mr. McNulty: The question of anonymity remains the preserve of the police. If the police say clearly that, for operational reasons, they want anonymity to remain in place, it does so. They are free to say to us, for operational reasons, “Please now lift the anonymity order.” As and when that happened, of course that would be granted. That, and nothing else, is the case in terms of anonymity, so adding the issue of anonymity to the shambles is not entirely accurate.
Patrick Mercer: I accept the Minister’s intervention, but comments from the Home Office such as the one that I have quoted are deeply unhelpful. If he, or another Minister, had come forward at the time and elaborated in the way that he now has and articulated the case much more clearly, perhaps that would have been acceptable. But there was a desperate feeling of complacency from the Home Office about this matter: “Yes, okay, they’ve gone absent. It is a problem? Not really. We won’t bother identifying them. They are on a weakened form of control order.”
Mr. McNulty:
The matter was brought to my attention and I went on “Newsnight” that night and explained that very point to Mr. Paxman. In relation to
the person who entered the mosque, Lord Carlile says clearly that the individual had not been served the order, so he was not in breach of it, and there was no substantive operational reason why the police could enter the mosque. I accept that that needs to be looked at and gone into in more detail, but there are clear reasons in many of these cases. I accept that they are unsatisfactory, but not for many of the reasons that the hon. Gentleman suggests.
Patrick Mercer: I fear that the Minister does not really believe what he is saying. With the greatest respect, he did not convince me on “Newsnight”. We have to move on. I just do not see that this system is ever going to work.
Mr. Cash: There was a full-ranging debate on Monday on the Human Rights Act. The question of the publication of photographs came up. It is a matter of grave concern that the application of universal principles has a precautionary and inhibiting effect on the police, in that they often simply do not know what to do. It is in those circumstances that we get into the shambles that the Minister has just been talking about.
Patrick Mercer: I am grateful to my hon. Friend for his intervention. I have no doubt that the Minister will pick up on that. Again, we should listen to the language used. The system does not work. It is unconvincing. We allow dangerous people to abscond and to be in the community and our community abroad at our peril.
Mr. Jeremy Browne (Taunton) (LD): Based on the comments that the hon. Gentleman just made, will he indicate which way his party intends to vote in the Division?
Patrick Mercer: Yes, I will: we are going to support the motion, with great reluctance, and, if the hon. Gentleman will allow me to proceed, I will conclude by pointing out why.
Patrick Mercer: Well, that is fine.
The comments that Lord Carlile makes in his annual report are quite clear. There are still areas in relation to which people might be prosecuted. For instance, in section 58 of his report, he says:
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