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Mr. Grieve: Let me take the hon. Gentleman back to the matters we were discussing a few moments ago, such as the use of intercept evidence. The proof of the pudding will be in the eating: a Counter-Terrorism Bill is imminent, and if it implements the measures we want, it ought to go a long way towards giving the Government the confidence to abandon control orders. I also think that once it is on the statute book it will strongly strengthen the hands of those who are unhappy about control orders. The hon. Gentleman will therefore understand why, despite our great reservations, we have adopted the position we have this afternoon.
Tom Brake: I echo the hon. Gentleman’s point about expectations of how the Counter-Terrorism Bill might assist by making it likely that the need for control orders diminishes or goes away entirely. However, I must remind the hon. Gentleman of what he said about how he thinks the Government will deal with the Counter-Terrorism Bill: he said that he was cynical, and not confident that they will address it in the way he hopes.
There has been little progress on the four points my right hon. Friend raised 12 months ago. Members have rightly drawn attention to the time limits issue. The Minister quoted Lord Carlile’s report, and he will therefore be familiar with the points Lord Carlile made about what he describes as the “endgame” in relation to control orders. He said:
“I remain concerned about the ending, or endgame, of each control order”,
“cannot be continued indefinitely”.
He also said that, 12 months ago,
“I advised that, as a matter of urgency, a strategy is needed for the ending of the orders in relation to each controlee”,
“it is only in rare cases that control orders can be justified for more than two years.”
He also advises—the Minister has responded to this—
“that there should be a recognised and possibly statutory presumption against a control order being extended beyond two years”.
The Minister has made it clear that he does not support Lord Carlile’s view. However, I hope he will at least agree that his position is worthy of debate, and possibly of a vote in this place at some point in the near future.
While we are on the subject of time limits, it might be useful to mention that there is a need for a time restriction on the curfew of 12 hours, following the House of Lords judgment that an 18-hour detention period is unacceptable. The Joint Committee on Human Rights requested that restriction. I hope the Minister will make clear his position on that issue and whether the Government have a view on what an appropriate detention or curfew period might be.
My right hon. Friend the Member for Sheffield, Hallam also raised concerns about the review process 12 months ago. We welcome the creation of the control order review group and how it is operating.
Dr. Evan Harris:
My hon. Friend is right to draw attention to the report of the Joint Committee on Human Rights, which indicated that 12 hours would
appear to be about right for the maximum time limit. The Government do not accept that. When the Law Lords indicated that 18 hours was too long and 16 hours was right and thus quashed a control order, the Government subsequently increased some control orders from 12 to 16 hours. They have made their view clear, but it is regrettable.
Tom Brake: I can only echo my hon. Friend’s concerns.
I was discussing control orders being subject to regular and thorough review. I appreciate the work that the control order review group is doing, but hon. Members have referred to the issue of how Lord Carlile’s review of control orders is conducted. More specifically, we need to consider the time scale for conducting it, passing it on to Government and publishing it. The Minister rightly put on the record what happened in a previous year and what happened this year. He acknowledged—hon. Members and the Joint Committee on Human Rights have also flagged this up—that we could do better on the length of time the report is available for hon. Members and the Committee to consider.
The Minister put his case in a measured manner, acknowledging that control orders are not perfect. I regret that little new has been said this year. Our concerns have not been addressed this year, so to be consistent with the position we adopted last year we intend to divide the House on this issue again this year.
2.47 pm
Mr. Andrew Dismore (Hendon) (Lab): I should like to discuss the 10th report of the Joint Committee on Human Rights, which I chair. The report is one of the relevant documents in this debate, and as we have had a wide-ranging debate, it is important that we focus on the motion.
The Committee is in full agreement with the Government about the positive obligation of human rights law to take effective steps to protect the public from the real threat of terrorism, and the need to keep measures under review to ensure that the authorities are properly equipped, both legally and physically, to respond to the threat and to ensure that measures taken are not incompatible with human rights in the light of experience. If the measures are incompatible, that will ultimately become counter-productive.
The Committee agrees with the Government that the control order regime is the second best option to prosecution—I think that there is a general consensus about that. It is also clear that control orders, in some form, will be needed for the foreseeable future. We need to examine them in detail in the light of experience and court judgments to see what changes to the regime are needed. Our recommendations fall into four broad categories: the need for better parliamentary scrutiny; the need to look at the obligations and restrictions contained in the control orders; the need for due process; and, last but not least, the need for an exit strategy.
I shall deal first with parliamentary scrutiny. Lord Carlile’s report was published only three days ago. I do not blame the Home Office on this occasion, but inevitably our report could therefore only be published
yesterday to inform today’s debate. According to statute, Lord Carlile’s report should have been prepared as soon as practicable after 10 December 2007—the date of the previous quarterly review. The way that this situation has occurred year after year frustrates the scrutiny provisions set out in section 14 of the Prevention of Terrorism Act 2005. It prompts a question, because very similar terms on the parliamentary review of pre-charge detention are provided for in the Counter-Terrorism Bill. The issue needs to be examined.
My Committee recommends that we should have the report at least a month ahead, to enable us to produce our findings on it and to inform debate more effectively. We also think it is important that the reviewer should be appointed by and report directly to Parliament, and that the Secretary of State should produce an annual report to Parliament.
Dr. Evan Harris: Given that the deadline for renewal is not until 11 March, and the Government chose to have the debate today rather than in a week’s or two weeks’ time, it is the scheduling of this business for today that has in part led to the contraction of time available for the Joint Committee on Human Rights to consider the independent reviewer’s report and for Members to read any report from the Joint Committee.
Mr. Dismore: The hon. Gentleman makes a fair criticism, but the serendipitous effect of having the debate at this stage is that it enables us to put before the House our recommendations for reform and gives the Government time to consider those recommendations when we consider the terrorism Bill later. It would, however, be far better if we had the time to debate the issues properly and in an informed way.
On the terms of the control orders and whether they amount to deprivation of liberty, the Government say that none of the control orders now in force—or indeed ever made—derogate from article 5 of the convention on the right to liberty. If that were the case, only courts could make such orders. We need to consider the restrictions in the control orders in combination with each other and with the daily length of the curfew. As has been said, the Government have extrapolated from the House of Lords decision the belief that 16 hours is satisfactory, but that is to quote only part of the views of Lord Brown, who goes on to say in his judgment, on which the Government rely:
“It may be, indeed, that 16 hours is too long. I would, however, leave it to the Strasbourg Court to decide upon that”.
Our view is that 16 hours is too long. The average control order is now 10 hours, and our view is that 12 hours would be an appropriate length. Indeed, the European Court of Human Rights, in a case involving Italy, has found that nine hours amounted to deprivation of liberty, so there would be severe and serious consequences for liberty if the maximum daily limit were not reviewed.
One of the Committee’s main concerns arises from questions of due process. We are in something of a Kafkaesque world when it comes to the way control orders are brought forward—or perhaps I should cite Henry VIII’s star chamber, as that was only a few yards away from where we are today. The Secretary of State gives no reasons for making the control order to the
controlee, who is not told of the case against him to the extent that it is based on closed material. The special advocate—the controlee’s lawyer—cannot discuss the case with his client. The control order is made solely on the basis of reasonable suspicion.
Jeremy Corbyn (Islington, North) (Lab): In the Committee’s consideration of the matter, did my hon. Friend come across any parallel situations in any European country in which the defendant was denied access to the crucial information about why he or she was being prosecuted in the first place?
Mr. Dismore: We have not done any detailed comparative work to that effect, so I cannot answer my hon. Friend’s question one way or the other. However, I would be surprised if that were the case and we had a very different regime under common law, looking at the issue of terrorism more generally, compared with some of the civil law countries.
It is important to recognise that mistakes can be made, especially when one is working on the basis of intelligence, as the Lotfi Raissi case graphically illustrated a couple of weeks ago—although in a very different context to control orders. We believe that we must have safeguards against such problems commensurate both with public safety and protection of sources. For that reason, we would like to see incorporated in the law an absolute guaranteed right to a fair hearing. The House of Lords, in a recent case, said that those words should be read into the statute, but they do not appear there. Without that reference, there is a lack of certainty in the law and we need that express reference.
We believe that the gist of the closed material should be disclosed to the controlee. That can be done in a way that protects sources, but the controlee is entitled to know at least the basis of the case against him. We believe that special advocates, with the leave of the court—through an application to the High Court ex parte—should be permitted to discuss closed material in those circumstances with a controlee, if authorised by the court to do so. We believe that the Secretary of State should give reasons for the making of the control order.
The standard of proof is also important. Reasonable suspicion is a very low standard, compared with the seriousness of the consequences for the controlee of the making of the order. We think that the balance of probabilities would be a better test. We also think—although it would probably be of less utility—that the special advocates should be able to call rebuttal witnesses. At present, their right to do so is questionable.
I mentioned the need for an exit strategy. Seven of the controlees have been under a control order now for two years. Two of the 15 have been under a control order for three years, and we believe that for the three years before that they were in indefinite detention in Belmarsh. That makes six years, all together, in detention or under control for people who have not been convicted of any offence at all. We run the risk of creating Guantanamo-style martyrs. Perhaps they are not as visible. They are not under the same sort of
oppressive regime, for sure. Perhaps they are in the gilded cage of Acacia avenue rather than the harshness of a Cuban camp, but we have still seen indefinite restrictions on their freedom and six years is far too long.
After such a length of time, as Lord Carlile says, those people will be of questionable use to any terrorist group. Such groups prefer to work with people with clean skins, as we saw in all the terrorist attacks that have taken place so far. The individuals concerned are clearly fingered and subject to ongoing monitoring.
Jeremy Corbyn: I thank my hon. Friend for giving way again. On that general point, in its discussions has his Committee come across any view from anyone within the communities from which the detainees or those who are subject to control orders come that shows a changed attitude to the police and security services in our society?
Mr. Ellwood: On a point of order, Madam Deputy Speaker. I seek your advice. Is it appropriate for an hon. Member to join such an important debate late in the day, and when time is urgent, to delay or procrastinate during a speech when many other hon. Members want to participate?
Madam Deputy Speaker (Sylvia Heal): It is certainly unusual for hon. Members to come in late, but nothing prevents an hon. Member from making interventions if the hon. Member on his feet is prepared to accept them.
Jeremy Corbyn: Further to that point of order, Madam Deputy Speaker. I apologise to the House for not being here for the opening section of the debate. I was conducting an advice bureau in my constituency. I feel strongly about this matter and wanted to intervene on my hon. Friend the Member for Hendon (Mr. Dismore); I was not trying to delay the debate.
Madam Deputy Speaker: Thank you, Mr. Corbyn.
Mr. Dismore: I think that my hon. Friend raised the issue of the general impact on community relations and co-operation in the minority communities, which might be feeling somewhat targeted. That issue is very much on my Committee’s mind.
On the question of an exit strategy for control orders, we welcome the creation of the control order review group. We think that there should be a positive duty to keep the control orders under review in each case. There are a series of options available to the CORG. Prosecution is, of course, the primary option and the most preferable. However, the fact remains that not a single controlee has been subject to prosecution so far. We believe that control orders should be made only when there is no realistic prospect of a prosecution being brought successfully, except in urgent cases, and that there should be a duty to that effect. In fact, in 2007 there was only one such urgent case. Our view is that controlees should be subject to a three-monthly review, with a view towards prosecution.
Deportation is very important. Nine notices have been served and six people have been deported. It is a question of modifying the restrictions, revocation, non-renewal and the important option of de-radicalisation. However, that does not get round the question of the
maximum duration of the control order and indeed the question of the people we mentioned who might be subject to controls for up to six years.
There is no clear answer in human rights law to this question, beyond saying that human rights law prohibits the severe controls of indefinite duration. Lord Carlile’s recommendation is for a maximum of two years as a rebuttable presumption in statute other than in genuinely exceptional cases. We tend to favour that approach. It is a difficult question and we feel that it is worthy of a debate in Parliament. In due course, we hope to table an amendment to facilitate such debate.
In conclusion, I repeat the fact that human rights law imposes a duty on the state to protect us all from terrorism and that the Committee sees control orders as second best. We must ensure proper parliamentary scrutiny, that the restrictions we impose on people are proportionate and the subject of due process, and that there is a proper exit strategy available in each case.
The Joint Committee on Human Rights will propose amendments to the new Bill to facilitate debate on the control order regime and other things that we think should be considered in detail. I shall certainly support the Government this afternoon, because the order is not amendable. I hope that by next year experience will have led to the sort of changes that we believe will make the control order regime not only fairer but ultimately better in the overall strategic objective of combating terrorism.
2.59 pm
Patrick Mercer (Newark) (Con): It is a pleasure to follow the hon. Member for Hendon (Mr. Dismore), and it is a great pleasure to be able to address the Minister for Security, Counter-Terrorism, Crime and Policing as right honourable. I pass my congratulations to him.
The people we seldom properly support, praise and laud are our security services, including the police, MI5, MI6 and GCHQ. Were it not for the outstanding and gallant behaviour of those men and women over the past 12 months I have little doubt that we would have seen further atrocities, further dead and further injured. It is in the nature of their duties that they remain unsung and low profile. All of us, from whichever side of the House we speak, have a duty to record our thanks and admiration for the brave men and women who do that job on a daily basis.
It depresses me that I am experiencing almost déjà vu. Last year I spoke from the Opposition Front Bench, opposite the right hon. Gentleman, and when I look at the words I uttered then I see that almost nothing has changed. It depresses me that in matters of life and death—as I believe these are—the House is so dilatory in making real progress on subjects that can make a difference to the liberty and indeed the continued life of terrorists. For instance, this time last year, we were talking about one of the most important measures that we could possibly put in place to displace the control order regime—intercept evidence. There were signs—green shoots of hope—that the Government might consider the use of intercept evidence. This year we know that the Government will indeed accept the use of intercept evidence—after yet another period of review. Why do we need to be so slow?
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