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“continuing investigation into the activities of some of the current controlees could provide evidence for criminal prosecution and conviction.”
The Minister will be aware of the court case in Manchester last week, in which Mr. Justice Beatson quashed the control order on suspect E, ruling that the Home Office had evidence that could have been used as a basis for prosecution.
The Minister touched on the question of bringing the regime to an end in the fullness of time, but we had this argument last year. The inception of control orders was deeply contentious in the Commons. I worry very much that we will be rehearsing precisely the same argument this time next year and that nothing will have been resolved. Where are the provisions to end control orders?
How do individuals ever get off a control order? Lord Carlile concludes that the
“orders cannot be continued indefinitely—that was never intended and would not be permitted by the courts. As a matter of urgency, a strategy is needed for the ending of the orders in relation to each controlee”.
The noble Lord, whom the Government have charged with the oversight of the orders, is coming up with precisely the point that they must be urgently sorted out. A much more workable system must be put in place.
The Minister referred to the control order review group. How many times has the group sat to date, and, in his view, how effective has it been?
Surely the whole raison d’être for putting someone under surveillance is that he or she can eventually be charged, brought to court, tried and, if found guilty, sent down. We thus need to address yet again—exactly as we said this time last year—the whole argument about intercept evidence, its admissibility in court and the reason why we seem to continue stalling on this particularly important subject. We must also address the question of interviewing post-charge. There is legislation that allows that to happen, so I cannot understand why it is not applied and why we do not use the measure physically to bring people up in court and take them off control orders by either locking them up or setting them free.
What are the Minister’s views on the efficacy of the control order regime? Only last week we heard that three individuals who had been intercepted on the Kenyan border were brought back to this country under grave suspicion of terrorism, yet released into the community without, as far as we know, any form of supervision—certainly any form of overt supervision. Might it not have been reasonable to use control orders to supervise those three individuals?
Countries such as Singapore, Malaya, Indonesia and the Philippines have rehabilitation programmes for their suspects who are either behind bars or on the equivalent of control orders. What have the Government done about that? What sort of rehabilitation programme do we have to try to bring these individuals round to a more rational, sensible and sane way of thinking? I have never heard anything about such an initiative from the Government at any stage.
In conclusion, and to answer the question asked by the hon. Member for Taunton (Mr. Browne), we will support the extension with great reluctance, but we must put the Government on notice that, in view of Lord Carlile’s latest report, we will not be able to sustain our position this time next year. Will the Minister assure me that there will be a review of all control order cases with the explicit intention of prosecuting when the evidence is available to do so? We have to bring the system to an end and we have to end the injustice. We have to take dangerous and subversive people off our streets, but the system does not allow that to happen.
1.34 pm
Fiona Mactaggart (Slough) (Lab):
I was grateful to the Minister for his response to my right hon. Friend the Member for Southampton, Itchen (Mr. Denham), because he dealt with one of the two critical aspects of
the Carlile report: that regarding proposals to ensure that prosecution is considered fully in every case. I am also especially grateful that the Minister intends to report to the House about how the process goes forward. That nails one of the critical issues that we should be addressing in the debate, so I will focus on the other: the issue of time.
In many areas of the Home Office’s operations, it fails to understand the impact of time on human beings’ lives. It has a perfectly sensible sets of policies. However, the most obvious example of the problem is the situation regarding immigration. Over time, people grow up, get married and change their lives. A policy that was sensible to apply at one time in a person’s life is thus not necessarily sensible after the five or six years for which the Home Office has been brooding about the right thing to do about that person’s case. I raised that matter on several occasions with the Minister in his previous incarnation as the Minister for Immigration, Citizenship and Nationality.
I am worried that we are at risk of floating down the same river with control orders. I do not believe that that is the Minister’s intention, and I think that we can avoid that risk. I hope that he will be able to assure the House today that there is a clear programme of work in hand to avoid the risk of individuals being subject to control orders that are renewed time after time. That was why I intervened to ask whether the two individuals whose control orders were renewed in March 2006 would have those orders renewed next month, if the order is passed. They have already been under control orders for two years. Will they be under control orders for three years, and what will happen after that?
The control order is an important tool in the Government’s armoury against terrorism and we cannot underestimate its possible value. However, we must stop and think about using a control order constantly over time. I am certain that introducing more robust ways of considering prosecution will be a way of addressing the situation. However, Lord Carlile was very clear that there
“has to be an end of the order at some point, in every case.”
“Some of the controlees have already been the subject of their orders for a considerable time. Their orders cannot be continued indefinitely—that was never intended and would not be permitted by the courts. As a matter of urgency, a strategy is needed for the ending of the orders in relation to each controlee: to fail to prepare for this now whether on a case-by-case basis or by legislation (if appropriate) would be short-sighted.”
I hope that the Minister—he is a good Minister and I am confident that he has a plan—will be able to assure us in his winding-up speech that, in respect of the two individuals whom I cited and the situation more generally, he has a proposal that will ensure that we will not allow this moral horror to continue. Although a control order is a necessary tool, it is not sufficient to say, “Well, it’s necessary, so we’ll allow it to keep floating on.” I hope that we will hear about what will be done about the longest-running cases.
The hon. Member for Newark (Patrick Mercer) mentioned control orders on individuals who have signalled their intention to join jihad overseas. We are
potentially missing two tricks. First, we should publicise more widely the fact that that could lead to a control order. A number of people—not a very large number, thank goodness—see themselves as future martyrs and think that they can achieve that internationally. If they knew that they were likely to be subject to a control order, their activities would be more circumscribed.
Secondly, what efforts have been made to try to straighten out the perverted thinking of these people? I suspect that it is possible to do that in some cases. Often we are not talking about people who have been directly involved in planning acts of sabotage in the UK. Some of them may not have thought through the full consequences of their actions. The work on the rehabilitation of violent prisoners shows that it is possible to change some thinking. I do not know whether the Minister has the power to make such efforts, but I would be interested to know whether there is any such power, or any prospect of working with people who are subject to control orders to help them confront the possible consequences of their plans. That might help to divert them and it would certainly help to make the rest of us safer.
On the fundamental point, the most important issue in Carlile’s report is time, and I hope that the Minister will be able to reassure the House that he is developing proposals to ensure that control orders are used not as a long-term solution to the problem of terrorism but appropriately as a shorter term solution to enable the state to develop effective prosecutions or take other actions—for example, against breaches of the control order. Unless we can show that we are doing that, we risk breaching international human rights standards—unlike the hon. Member for Stone (Mr. Cash), I am glad that those standards apply to this regime—and bringing ourselves into international disrepute, and I do not think that this country deserves that.
1.42 pm
Mr. Nick Clegg (Sheffield, Hallam) (LD): On the day that the Prevention of Terrorism Act 2005 came into force, 11 March 2005, the Prime Minister said that
“there will be every opportunity for people...to put forward amendments to make arguments about the legislation without putting at risk the entirety of that legislation”.
We had hoped that today would provide that opportunity because we believe that the control order regime is, for various reasons that have been explained, imperfect and in need of extensive revision.
In particular, we maintain our serious concerns that the standard of proof required for the Secretary of State to sign non-derogating control orders, which was referred to earlier, is too low; that the power to impose such orders should reside with the court, not the Home Secretary; that they should be strictly time-limited; and that they should be subject to regular and thorough reviews on the possibility of proceeding beyond the orders and towards prosecution.
Those are not flippant reservations. They have been expressed already in the debate today. They have been reinforced by the excellent work of the Joint Committee on Human Rights and others. They cannot
simply be ignored from one annual debate to the next. Yet, despite repeating those reservations at every turn of the debate during the last two years since the legislation was introduced, we find ourselves forced into a corner on a vote that provides no opportunity for amendment. It is reasonable to ask whether those long-standing reservations have been strengthened or weakened by the experience of control orders since we last debated them here 12 months ago.
The record is not an encouraging one. As has already been observed, three of the 18 controlees have absconded, escaping the strictures of their control orders altogether. The High Court has ruled against the Home Secretary on no fewer than three occasions. The latest ruling, from Mr. Justice Beatson, made last week, is typical: the control order was quashed on the grounds that it amounted
“to a deprivation of liberty and only the courts, not the Secretary of State, have power to make such orders”—
in other words, the Secretary of State exceeded the powers given to him—and because
“the Secretary of State failed to consider properly and fully whether the controlee could be prosecuted for criminal offences rather than being made subject to a control order”.
The latter observation, as others have pointed out, is crucial, and it is echoed in the second report of the independent reviewer of control orders, my noble and learned Friend Lord Carlile of Berriew, released two days ago, in which he states that
“continuing investigation into the activities of some of the current controlees could provide evidence for criminal prosecution and conviction”.
That builds on his telling observation in his first report, published a full 12 months ago—this is not new—in which he said:
“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.”
That is compelling evidence, and our fears that control orders would remove the pressure on the police and others to bring charges and pursue prosecutions have considerably increased, rather than diminished, with time.
We should be devoting more time to working out how to bring more terror suspects to court rather than simply renewing an increasingly flawed control order regime, which even the current Home Secretary has agreed is “full of holes”. More could be done, for example, to clarify the so-called threshold test used by the Crown Prosecution Service in terror cases so that charges can be brought even in cases where all the necessary evidence is not yet fully available, for instance because of the complexity of computer-based evidential trails, but there is a good prospect that it will become available.
As the Attorney-General has tentatively suggested, we should re-examine the circumstances in which the police can question suspects after charge. If we relax the rules to allow more extensive questioning, with clear safeguards against abuse in place, we would make it far easier for the police to continue investigations after formal charges had been laid.
We must find a way to introduce phone-tap evidence in court, with protections for the security services so that agents and surveillance methods are not compromised. As the Government have accepted, intercept evidence could be vital in delivering terrorist suspects to trial.
Mr. Mark Oaten (Winchester) (LD): Does my hon. Friend share my concern that the reason for the delay in dealing with the question of intercept communication may be not concerns from the intelligence service but objections from the commercial elements of the providers of mobile phones and telecoms in this country?
Mr. Clegg: My hon. Friend makes an interesting and intriguing observation. I was not aware that that might be the case. Frankly, I am in the dark about precisely what the objections are. The Government seem to be not entirely of one mind. The Attorney-General has said in public, for example on a recent visit to the United States to see the use of intercept evidence there, that it could be a powerful tool in our common struggle against the contemporary terror threat. I hope that the Government will follow up their attempts to emulate the practices of France, the US and others, who find our reticence on this point very difficult to comprehend.
Finally, we could use plea bargaining more actively to encourage so-called super-grasses—lower order suspects on the periphery of plots—to give evidence against more serious criminals. The Government have already passed plea-bargaining legislation to tackle organised crime. Why not use it also to thwart terror plots? Combined with essential efforts to build trust in our Muslim communities, that could help encourage individuals to testify and help us bring terrorist masterminds to court.
It is not unreasonable then to conclude that the persistence of the current control order regime is proving increasingly difficult to sustain in the courts and increasingly flawed in practice. It removes, or appears to remove, the pressure to charge and prosecute the criminals whom we all want to see apprehended. It diverts energy and attention away from other important innovations that we should be examining to strengthen our criminal justice system, and it infringes the most fundamental principles of due process and human rights.
We understood the exceptional circumstances facing the Government when these powers were rushed on to the statute book. We enthusiastically supported the then Home Secretary’s promises that the control orders would be comprehensively reviewed in a wider review of anti-terror legislation. We acknowledged that the 7 July bombings required a further delay in that review. Yet today we find ourselves, yet again, as we did 12 months ago, without any detailed answers to our reservations of principle and practice, without any concrete sign that control orders will be reviewed or revised in a sufficiently meaningful way.
Mr. Cash:
On the question of human rights, as the hon. Gentleman will remember, there was an understanding between my Front-Bench colleagues and his party that there would be ring-fencing of the Human Rights Act 1998 with respect to control orders, so I hope that he understands that if I go into the No
Lobby to vote against the continuance of the measures, which are huge, it is entirely because I am against the proposition that the Human Rights Act should be ring-fenced in relation to the provisions.
Mr. Clegg: The hon. Gentleman is clarifying his position, and obviously he is free to do so, but I do not agree with the supposition, and judging by the way in which my hon. Friend the Member for Winchester (Mr. Oaten) shakes his head—he would have been party to the understanding to which the hon. Gentleman alludes—it is not an event that he can recall.
Surely in the circumstances it would be irresponsible not to signal that we should today pause and reflect on the changes that are necessary to the flawed control order system. Surely it is the role of the House to scrutinise the effect of control orders, and to draw a line in the sand when it is abundantly obvious to all that they need to be reviewed and replaced. I hope that the Minister will respond to our objections and reservations, accepting the seriousness with which they have been held and developed over a prolonged period. Those objections are sincere and have been confirmed by experience.
Mr. Tom Watson (West Bromwich, East) (Lab): I listened to the hon. Gentleman’s concerns, many of which are valid, and to the concerns of the respected hon. Member for Newark (Patrick Mercer), who in a sense has put the Government on one year’s notice. If the hon. Member for Sheffield, Hallam (Mr. Clegg) intends to lead his party in opposing the renewal order today, will he tell the House what he thinks the effect of failing to renew the provisions will be on people who are subject to control orders, and what will that do for public confidence in our security services?
Mr. Clegg: If control orders were no longer a tool that could be used on the 18 individuals in question, I hope that two things would happen. First, I hope that those for whom there is evidence would be charged and prosecuted. We have learned in Lord Carlile’s report that it appears that that would be the case in at least some of the 18 cases, but I do not know in how many of them. Secondly, as to the others, of course I hope that the police and other authorities would be able to subject them to surveillance, as happens in many other cases, so that they can gather evidence and bring charges that lead to full prosecutions.
Mr. Clegg: If I may, I shall conclude, because there is not much time in this short debate. We have reservations; the Minister shakes his head, but we have been here before. There was the original debate two years ago, when the legislation was first passed, and our reservations were repeated 12 months ago, too. I have at least attempted to demonstrate that the experience of the courts, and the practical difficulties in implementing the control orders, have made those reservations more, rather than less, acute. On that basis, we will seek to divide the House today and will vote against another annual renewal of the control orders.
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