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(a) ensure that the question of whether there is a reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence is kept under review at least every three months;
(6) Nothing in this paragraph, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with the right to a fair hearing in Article 6 of the European Convention on Human Rights..
(5A) Rules of court must secure that persons appointed under this paragraph may apply to a High Court judge, without notice to the Secretary of State, for permission to communicate with the controlled person after the service of closed material..
(11A) In a hearing to determine whether the Secretary of States decision is flawed, the controlled person is entitled to such measure of procedural protection as is commensurate with the gravity of the potential consequences of the order for the controlled person..
Mr. Dismore: This group of new clauses and amendments relates to control orders. When we debated the renewal order in February, the control order regime was subject to considerable criticism. I agree with the Government that the control order regime is the second best option after prosecution. If the control order regime is to stay, we must review the safeguards and ensure that it is compatible with human rights law. We are discussing restrictions on liberty without a criminal charge or trial.
New clauses 5 to 7 refer to the importance of prosecution; new clause 8 relates to the nature of control orders themselves; new clauses 10 to 15 concern due process; and new clause 16 relates to an exit strategy. In the case of E, the House of Lords said that there was an implicit duty on the Government to keep the possibility of prosecution under review. Baroness Hale said that control orders were second best and that the public were far better protected, because even while criminal proceedings are pending, the controlled person is subject to serious restrictions on the basis of mere suspicion.
I welcome the introduction of the control order review groups quarterly meetings to consider whether prosecution can take place, but not one controllee has ever been prosecuted. New clause 5 would put an extra check on whether prosecution was possible by requiring the Director of Public Prosecutions to certify that there was no reasonable prospect of prosecution before an order could be made. We know that the DPP is quite important in such matters because of the debate that we are likely to have tomorrow.
New clause 6 would make statutory the duty to keep matters under review. It is current practice; the Government agreed recently with the control order review group. In the case of Secretary of State for the Home Department v. E, they argued that they needed to have only periodic inquiries into whether the matter should go forward, so we need to ensure that the provision is included in the legislation. It is also important to ensure that the police see all the material available to the Home Secretary. They may well be able to turn some of what is currently inadmissible into admissible evidence; they have had some success in doing so in other terrorist cases. Lord Carlile, in his third report on control orders, made the point that the continuing investigation of current controllees could provide evidence for prosecution and conviction, so the new clause would give effect to his recommendation, too.
New clause 7 would provide for more transparency in the process and, again, would give effect to a recommendation from Lord Carlile in his third report, when he said that more detail about the reasons why there were no reasonable prospects of prosecution should be given by the chief of police to the Home Secretary. The new clause would also give effect to recommendations from Lord Carliles first report in 2006, when he said that the reasons should be disclosed to the controllee unless that would be contrary to the public interest. The new clauses would give effect to his recommendations in those two reports.
New clauses 8 and 9 are about the nature of the control order and whether it amounts to a deprivation of libertyagainst article 5 of the European convention on human rights. If it does, it should become a derogating control order. That would happen only if the courts authorised it. Whether the order amounts to a deprivation of liberty is a question of not just the length of the control order, in terms of the number of hours per day, but the conditions imposed in combination. In the case of Guzzardi v. Italy, the European Court of Human Rights found that when combined with other restrictions, nine hours maximum amounted to a deprivation of liberty. We must have a more nuanced approach than simply stipulating the number of hours and a curfew.
Lord Bingham in the case of the Secretary of State for the Home Department v. JJ said that one should take account of the individuals whole situation, and that it was inappropriate to draw a sharp distinction between a period of confinement that would amount to a deprivation of liberty and one that would not. New clause 8 would make that point in the Bill, looking at the overall factors that must be taken into account.
The period of daily confinement is, of course, important in the overall assessment, and new clause 9 therefore seeks to limit the daily length to a maximum of 12 hours. There is no guarantee that it would be compliant with article 5. After previous court cases, the Government reduced some periods to 12 hours. In fact, there is little evidence of any significant damage to public protection in reducing control orders to 12 hours. If there were any such evidence, the Government should and would have produced it by now.
It may be, indeed, that 16 hours itself is too long ,
but that he wanted to leave it to the Strasbourg Court to decide. That is hardly a ringing endorsement of the Governments view that 16 hours is permissible. We have no clear judicial guidance and Parliament therefore ought to form its own view, which my new clause would enable it to do.
The most important issue that we must face is the lack of due process. New clauses 10 and 15 are based on the recommendations that the Joint Committee on Human Rights put forward in our 10th counter-terrorism report in May. They are rooted in the evidence that we received from the special advocates who deal with such cases. I hope that my right hon. Friend the Minister will meet them, as he has promised to do, to discuss their concerns further.
Once a controllee enters the twilight zone of dubious legality, he faces restrictions on where he can go and when, who he can meet, his use of his phone and computer and his transfer of money and goods. He also faces requirements to report to the police, to allow the police into his home without a further warrant and many other restrictions. The controllee enters a Kafkaesque world in which, like those unfortunates who were brought before Henry VIIIs Star Chamber, he is not told of the case against him, is not allowed to discuss his case with his special advocate, sees the case against him decided on the ground of mere reasonable suspicion and, at the end of the process, is not given the reasons why the order against him was made. On that basis, people have been subjected to controls for three years so far, and remain so indefinitelyin some cases on top of three years previous detention without trial in Belmarsh. We know that the security services can make mistakes, not only in the de Menezes case but in the Lotfi Raissi case, which has had such a serious impact on an innocent man for the rest of his life. It is essential that safeguards are brought into play so as to have at least some element of due process in the control order regime if they are to continue to be used to protect the public.
The Government say that the House of Lords approved their procedures in the MB case, but some of our criticisms were upheldfor example, of the entirely
undisclosed nature of the prosecution case. The Government have ignored the evidence given to us by the special advocates, and the guidance on MB is somewhat confusing. Indeed, another case is going to the Court of Appeal next month. This area of the law desperately needs clarification. I accept that some of the points that we have put forward are not required in relation to MB, but they are needed to achieve a modicum of fairness. New clause 10 would avoid the need for mental gymnastics by ensuring that the controllee would be entitled to a fair hearing. There is a lack of certainty in the Bill that needs correction.
New clause 11 would require an explanation to be given to the controllee of why the grounds for the control order were made out. New clause 12 would require the controllee at least to be aware of a summary of the materialthe gistwhich fairness requires him to be able to comment on. New clause 13 would allow the special advocate to apply to the court for authority to discuss aspects of the case with the controllee. That would be a safeguard from the security services point of view. It would ensure that there was an independent assessment so that the special advocate did not disclose matters that he should not disclose, but at the same time provide a degree of fairness. New clause 14 would provide a procedural protection for what was happening on a scale concomitant with the seriousness of the conditions to be imposed. New clause 15 would allow a rebuttal of expert evidence to be brought. Together, these new clauses, which are based on recommendations from the Joint Committee on Human Rights and rooted in the evidence that we received from the special advocates, would provide a greater degree of legal certainty and procedural fairness, which are essential if the control order regime is to continue into the future.
We should also consider the duration of control orders. Seven of the 15 people involved have been under control orders for more than two years, and two for more than three years, on top of three years detention in Belmarsh that was later found to be unlawful. Not one of them has ever been prosecuted. Nine controllees were serving deportation notices and six have been deported. One control order has been revoked and two were not renewed. Lord Carlile drew our attention to the fact that after that length of time such people are of somewhat questionable utility to terrorist groups, which prefer to operate with clean skins, not those who are so clearly compromised. The restrictions on freedom may not be Guantanamo Bay conditions, but they certainly provide a gilded cage in which people are confined indefinitely, and we therefore need to see an exit strategy. My new clause suggests a sunset clause of a maximum of two years on a control order unless there are exceptional circumstances. There is no clear human rights argument as to what should be the maximum length of time, but that chimes with Lord Carliles recommendation of a maximum two-year presumption unless there is a genuinely exceptional need. It is a question for Parliament to debate and decide.
Control orders are definitely a second best option to prosecution. We have to ensure that they are not unduly oppressive, that they are subject to due process and procedural fairness, and that there is ultimately an end to them in sight.
The hon. Member for Hendon (Mr. Dismore) and his Committee have done the House a good service
in coming up with these new clauses and amendments and an opportunity to debate control orders. Many in this House will remember our original debate on the introduction orders in 2005. It is rather engraved on my heart as a debate that went on for some 36 continuous hours of ping-pong between the other place and this House. The curiosity of that debate was that although considerable anxiety had been expressed about the introduction of control orders, the issue on which consensus eventually disappeared was whether we should have a sunset clause in the measure to ensure by bringing it to an end within a reasonable period that the House would have to revisit it and think afresh.
I sometimes think that the opinion of those of us who wanted a sunset clause has been borne out by events. In fairness to the Government, I can fully understand why they have been coming back to the House year by year asking for the renewal of the power. I suspect that no one in this House likes control orders; certainly, none of us should. I think that I used the word repellent to describe the concept when we debated them in 2005, and I have seen nothing since to make me change my mind. The principle of enforcing restrictions on individuals and their liberties without the ordinary trial process is something that we cannot be happy about, although I have always accepted that there may be a necessity in view of the threat that we face. Being realistic about it, I can see that the Government are in a position to continue making a powerful case that renewal may be needed for the foreseeable future. All the more reason, therefore, why we should take the opportunity provided by the Bill to revisit what the architecture of control orders involves.
The Committee chaired by the hon. Member for Hendon has made an extremely important contribution to this debate, and the amendments that he has tabled are extremely valuable, even if each one probably needs to be considered separately. On new clause 5, the principle that there should be a requirement for a certification process that prosecution is not possible is one of the important safeguards that should be introduced into the control orders system. I do not doubt the Governments good faith, and I have no reason to doubt the good faith of the Crown Prosecution Service, in respect of the fact that every effort must be made to ensure that individuals who are subject to control orders are prosecuted wherever possible. I leave to one side the debates that we have had about intercept evidence. I do not want to return to that subject and get bogged down in it, although I believe passionately that it might be of some assistance, if not a panacea, to have intercept evidence admitted. Nevertheless, it would be a valuable contribution to have a situation whereby, irrespective of whether we have intercept evidence, the Director of Public Prosecutions could provide such a certification process on the basis of the available evidence that is admissible in court. I very much hope that the Minister might feel able to respond positively to new clause 5, because I find it difficult to see why any rational individual should object to it.
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