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Many of the hon. Gentleman’s other amendments are very sensible. I am bound to say that I am sympathetic to his view that there should be a finite period for control orders that do not involve a derogation. It might be premature for the Government to accept it at this stage, but I think that it is time for us to look carefully at
the relationship between the special advocate and the person who is to be made subject to a control order to see whether we can make the system more flexible to enable better representation to take place.
Perhaps more controversially, the hon. Gentleman raises in new clause 9 the possibility of restricting to a period of 12 hours control orders for which derogation is not required. We are certainly in a grey area. We seem to have some confidence that 14 hours may be acceptable, but that 16 hours may, in some cases, not be acceptable. Having greater certainty might be valuable, but it is a matter on which I would want to hear from the Minister what he thinks would be appropriate.
I can only repeat that I am grateful to the hon. Member for Hendon for having introduced the new clauses, but before I allow time for further debate, and mindful of the fact that we have only half an hour to conclude the debate on this group, I repeat my view that new clause 5 merits the Government’s acceptance, even if they cannot accept anything else. Such acceptance would be a symbol of their good intent, and I do not see how it would interfere with the current system. If they are prepared to make some concession in the proposed direction, they will be in a much better position, when we come to renewing control orders next year, to say that they have made some progress in this matter.
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If the Minister were minded to look sympathetically at new clause 5, and perhaps assure us that even if he does not accept the other new clauses, the process of debate in the other place might prove productive in seeing whether we can adopt some of the suggestions raised by the hon. Member for Hendon and his Committee, the House would have made good progress this afternoon. I would then be in a position to say even nicer things to the Minister at the end of the debate on this group than I did at the beginning. New clause 5 is important, and I hope that the House will have an opportunity to express its view on it.
Tom Brake: The Liberal Democrats oppose control orders. However, when proposals are made to ameliorate them, they are worth looking at, and the hon. Member for Hendon (Mr. Dismore) has introduced on behalf of his Committee a raft of sensible proposals that would go a long way towards improving the orders. Unfortunately, the way in which they were rushed through meant that they are not watertight; indeed, the former Home Secretary described them as full of holes.
The hon. Member for Hendon, through new clauses 5 to 7, is encouraging prosecution as an alternative to control orders, and we would all support that. In new clauses 8 and 9, he seeks to improve conditions for people on control orders. I do not know whether other hon. Members have seen the book by Gareth Peirce, in which she describes in some detail the impact that control orders have on people:
“The electronic tag they had to wear, which registered every entry and exit from the house, was only one element of the family’s altered existence; a voice recognition system was supposed to confirm the detainee’s presence at home during curfew, but the machines, of US manufacture, often failed to recognise the accents of Arabic speakers, with the result that uniformed police officers would enter the house in significant numbers at all times of day and night. No visitor would come near their homes because to enter required first to be vetted by the Home Office. Children
could do no schoolwork that involved the internet, the use of which was forbidden. Families had endlessly to involve lawyers in the most trivial matters: to obtain permission to go into the garden; to attend a parent-teacher meeting; to arrange for a plumber to enter the house.”
We should not underestimate the significant impact that control orders have on the people to whom they are applied. It is therefore entirely right that the hon. Member for Hendon and his Committee should seek ways to improve the conditions of people subject to those orders.
The hon. Gentleman’s new clauses 10 to 15 would tighten the rules on hearings, and new clause 16 would restrict control orders to a maximum length of two years, except in extraordinary circumstances. We believe that the system is unjust and that the proposals made by the hon. Gentleman and his Committee are sound. If there is a vote on this matter, it is our intention to support his proposals.
Mark Durkan (Foyle) (SDLP): As others have said, control orders are a difficult concept. Many of us have experience of control orders in respect of other legislation and know how they have worked and how their effects have been felt. Although the hon. Member for Hendon (Mr. Dismore) and his colleagues have not been able to challenge fundamentally the use of control orders as provided for in the 2005 legislation, their new clauses propose that preconditions and conditions should be attached to the use and deployment of such orders, which is to be commended to the House.
The preconditions and conditions that would be attached to control orders are entirely reasonable. If the Government are telling us in respect of other measures in the Bill that the opinions, feelings and findings of the Director of Public Prosecutions should be relevant and should motivate moves by the Secretary of State and Parliament, surely in the case of control orders, we can hear from the DPP about the prospects of a prosecution. That would not become a one-off, jeopardy judgment, because the other proposals provide that it could be subject to further review, on a timely basis, every quarter, while other aspects of the control order would also be subject to review.
It would be entirely unreasonable, given all we have said about control orders being repellent to some of us, and given what the Government say about such orders being a matter of last resort, to refuse the proposals of the hon. Member for Hendon and others. I know that time is tight because of the programme motion, so we cannot go through them all, but I endorse what was said by the hon. and learned Member for Beaconsfield (Mr. Grieve)—the Government could signal a degree of openness and consideration by agreeing to new clause 5. That would allow further consideration of the consequential and related issues as the Bill progresses.
Mr. Gummer:
I am not opposed to control orders, but I see them very much as a last resort. I return to the continuous concern that whatever we do must be seen in the context of accepting last resort measures only when they are necessary. It is for that reason that I support the request that the Minister should agree to new clause 5. We need to remove from the penumbra of control orders any aspects that can be reasonably seen, as the hon. Member for Foyle (Mark Durkan) said, to be redolent of circumstances in which powers were used in a manner about which we feel sorry in retrospect; one
aspect is a constant understanding that there is no alternative, albeit the alternative of a trial and prosecution. That is one of the things we have to do to earn the right to have control orders in a free society.
The Minister can help the Government to recover their necessary reputation on such issues, which perhaps has been lost because of their determination to push in what many of us feel to be an illiberal direction on a number of other issues, some of which we shall come to later tomorrow. My hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) is right to suggest that it would be much more elegant for the Government to accept the changes than to allow them to be put to a vote. I use the word “elegant”, but I mean that it would be useful for the Government if they were seen to understand what some of us have felt it necessary to harry them about—their attitude in the matters that we feel unhappy about. They could show themselves able to reinforce the consensus, even among those of us who accept the need for control orders, that such orders should be subject to regular review. That could begin with the suggestion that it is necessary to ensure that there no alternative. That is, after all, not much to ask in a free society.
Mr. Llwyd: I, too, appreciate the work done by the hon. Member for Hendon (Mr. Dismore) and his Committee. Like the hon. and learned Member for Beaconsfield (Mr. Grieve), I believe that it would send out a good sign if the Government were prepared to consider new clause 5.
Personally, I am adamantly opposed to control orders, but they are a reality, and we are told that they serve a purpose. The proposals in the group would go some way towards ameliorating some of the concerns out there about the use of control orders. Requiring that
“the DPP has certified that there is no reasonable prospect of”
a successful prosecution is not asking a great deal in the circumstances. If a person has been put on an 18-month or two-year control order, with stringent conditions attached thereto, that requirement is the very least that we could call for. New clauses 6 and 7 propose the periodic review of whether there is a reasonable prospect of prosecution, which is also utterly reasonable, bearing in mind the huge limitations on the liberty of the individuals who are the subject of such orders.
The proposals are all well meant and would improve the control order mechanism. They would not render the mechanism unworkable or in any way less effective, but they would—if I can use this word—humanise it and send out a positive signal to the people out there who are desperately concerned about the purport of such orders. In so doing, the proposals would address quite a few of the human rights questions on this area of law that concern us all.
With those few words, I fully endorse the ideas behind the new clauses and amendments in the group. I urge the Minister, as others have, to consider accepting new clause 5 at the very least.
Mr. McNulty:
I, too, welcome the work of the JCHR on control orders. Indeed, dwelling on control orders has become one of its fixations—and, given their unique and extraordinary nature, quite rightly so for a Joint
Committee on Human Rights. I therefore do not deprecate its work at all. However, the Government would look to the highest court in the land, the House of Lords, for our legal reference point, rather than the JCHR, however munificent—or whatever the word is—it is.
To tackle things backwards, I do not accept anything in new clauses 10 to 15 that challenges directly the conclusions of the most recent House of Lords judgment on the process and whether a fair trial, or otherwise, has been accorded under article 6. Nor do I accept the passing reference that my hon. Friend the Member for Hendon (Mr. Dismore) made to the dubious legality of control orders. We might not like control orders; they might sit in a twilight zone and they might be deeply unsatisfactory compared with persecution—I do apologise; I meant prosecution—which of course they are, but it is simply not good enough to say, “We’re against them.”
On one level, we are all against control orders. I start from the premise that the right hon. Member for Suffolk, Coastal (Mr. Gummer) set out of “as much normality as possible”. In fact, I got into trouble last September for saying that the strongest lesson that we should have learned post-7/7 was that the rules of the game had not changed, and not the opposite. That was indicated by the Government of whom I was part at the time.
I will therefore resist the blandishments of my hon. Friend the Member for Hendon on new clauses 10 to 15, however well intentioned the work of the Joint Committee was. We think that they are unnecessary. Given the choice between a report, however well intended, by the JCHR and a judgment by the House of Lords, we find ourselves, as we always are, of course, on the side of the Law Lords.
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There is much to commend in the broad thrust of my hon. Friend’s new clauses 5, 6 and 7 on the renewal of control orders, as, from memory, I think I indicated last time. However, the formalisation that he seeks simply goes too far. There are reasons why I do not think that it would be appropriate always to go for non-urgent control order certification by the DPP, as proposed by new clause 5. My hon. Friend will know that the Lords scrutinised the matter at length. They concluded that no changes to section 8 of the Prevention of Terrorism Act 2005 were required. The Lords considered that there were “strong practical reasons” for the current approach and that the changes would have the
“potential to emasculate what is clearly intended to be an effective procedure”.
As I have already said, consultation arrangements are built into the legislation. As I think I said at the last annual review, should we make it clear that the processes for reviewing the potential for prosecution are all the sharper and clearer? Yes, we should. Should we look seriously into—and prove that we have looked seriously into—exit strategies for particular individuals? Yes, we should. Indeed, we have set out a range of ways in which we are seeking to do that. However, there are both principled and practical reasons for me to resist the substance of new clause 5, if not, in part, the spirit.
First, new clause 5 could leave a public protection gap. A control order may be necessary to protect the public from the risk of terrorism posed by an individual, even though prosecution of that individual is possible.
For example, an individual may be on bail, pending trial for a relatively minor offence and so the risk posed by the individual is much greater than the bail conditions that a judge would lawfully be able to impose on the individual, meaning that a control order is imposed in the interim to manage that risk.
Secondly, new clause 5 could damage other investigations or prosecutions, or otherwise damage the public interest. My hon. Friend will be more than aware that, in addition to the purely evidential threshold, the Crown Prosecution Service is obliged to consider prosecution in the context of the wider public interest. Thirdly, and more practically, the proposal would be resource-intensive and does not take account of operational realities.
By the by, if that last point were the only one, it would not be sufficient, given the seriousness of the deprivation of liberty. Taken together, all three points militate against accepting new clause 5. However, I accept the spirit, if not the intent, of the comments that my hon. Friend and the hon. and learned Member for Beaconsfield (Mr. Grieve) made in saying that we need to be as clear as possible that we have considered everyone’s collective preference—that is, prosecution—in great detail and that, in addition, we have properly reviewed the prospects for a prosecution in future and an exit strategy. In part, that is what my hon. Friend is trying to get to in new clause 6. Again, however, new clause 6 as drafted, and probably in intent—although I am not imputing any malign intent—, is inappropriate.
It is important that we do not undermine the independent role of the CPS and the police. Very often—I say this merely in passing and no more—the very committee that should be more jealously guarding than any other the difference between the police, the CPS and the various arms of the state, and the interaction between the judiciary, the legislature and the Executive, couches some of its reports in terms that suggest that the Executive run the judiciary and legislature, which is not entirely appropriate. [ Interruption. ] I thought I heard my hon. Friend the Member for Foyle (Mark Durkan) say something then, but he points to the Liberal Democrat Benches—he must have thrown his voice.
The independence of the CPS and the police is important. The CPS, not the Secretary of State, is responsible for considering whether a person should be charged with a criminal offence. Any shift in that responsibility could undermine its role. So the notion of the review group looking at the future prospects for prosecution is, given the interface between the police and the CPS, appropriate. I would say that the proposed new subsection (6A)(a), (b) and (c) are unnecessary. The statutory obligations of the 2005 Act, combined with court judgments, already deliver the intention behind the amending provisions, and the courts have confirmed that the Secretary of State must consult the police on the prospects of prosecution and do what she can to ensure that the police’s consideration is meaningful by providing any relevant information available to them. We looked into the matter at the last review and we undertook to try to achieve that significantly better and in a clearer way, but it is not necessary to build it into the Bill in the way that my hon. Friend the Member for Hendon intends in new clause 6.
Mr. Dai Havard (Merthyr Tydfil and Rhymney) (Lab):
The Minister talks about the prospects of prosecution and who is involved in the process, but may I take him
back to new clause 5? He relies heavily on the issue—to be debated tomorrow—of involving the Director of Public Prosecutions in decisions about the number of days for which people should be detained, so why is he now resisting the idea of the DPP saying whether there is a reasonable prospect for successful prosecution in respect of control orders?
Mr. McNulty: For precisely the reasons that I have just outlined— what that might do to broader public protection, what it does in respect of resources and what it might well do to the interface between the decision on whether to prosecute an individual and the myriad of other potential prosecutions going on around it. The threshold test does not live or die on its own in this or any other regard; and alongside that is the notion that the prosecution is in the public interest. The interplay between the three factors is important. It is not to denigrate here or anywhere else the role of the DPP, but it is important to understand the interface between those three elements. I wholly appreciate the professional role of the DPP and, of course, the Crown Prosecution Service, to date and subsequently.
Mr. Havard: I believe that the right hon. Member for Suffolk, Coastal (Mr. Gummer) raised the question about the legitimacy, particularly the political legitimacy, of the process with the general population and the people who may be subject to these orders. Surely the safeguard is that people affected would have some sort of verification that someone in the process, such as the DPP, in whom the Minister invests a lot of confidence, was involved. Is that not only politically useful, but useful in respect of the utility of the process?
Mr. McNulty: But I—or, rather, the courts—have already suggested that we are obliged to ensure that the review and monitoring of the prospects for prosecution are constantly kept under review. That is already an obligation imposed by the courts. It is the specifics of the certification by the DPP that trouble me in relation to the interface between resources, other prosecutions that may be germane and the very real risks relating to public protection.
Mr. Grieve: On the Minister’s point about the DPP, I find it difficult to envisage circumstances in which it could be said that it was in the public interest to subject somebody to a control order, but not to prosecute them, when the evidence on which to do so was available. That is the first point. The second, which I would add in a spirit of being conciliatory to the Minister, is that I did not mention amendments Nos. 11 and 12. They are relatively minor, but they would deal with the introduction of some retrospective legislation, to which we profoundly object. We will vote against retrospective legislation even though we have no objection to what the Government are otherwise trying to do.
Mr. McNulty: That is entirely fair, and I am grateful to the hon. and learned Gentleman for dropping me a note to explain that he was going to do that. I am happy with that.
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