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Mr. Cash:
I am glad to hear the hon. Gentleman talk about fair trials and due process. He may know that that is exactly what my Prevention of Terrorism (No. 2) Bill a couple of years ago would have provided for. On control orders, the problem is the Human Rights
Act 1998 and all that goes with it. Does he agree that it would be far better for us to legislate here in Westminster, on our own terms, and override that Act so that we can produce the results that he calls for?
Chris Huhne: I am afraid that I do not agree with the hon. Gentleman at all. His view of the Human Rights Act is extremely jaundiced and discoloured. It completely ignores the history of the Act and of its predecessor and foundation stone, the European convention on human rights, which was drafted by British and American lawyers precisely to put in place a bulwark for our freedoms. Frankly, that has stood the test of time and been terribly important. I am afraid that the hon. Gentleman is completely misguided on the matter.
I return to the developments that have made it easier to close the gap. First, there has been an enormous increase in the number of terrorism offences, under both the Terrorism Act 2006 and the Counter-Terrorism Act 2008. One answer to the right hon. Member for Airdrie and Shotts, who is no longer in his place, is that there is a power to proceed with a prosecution for acts preparatory to terrorism. Taking into account the threshold test and the flexibility that exists, it seems to me that we ought to be able to use proper, fair trials in such cases much more than we do. As Lord Carlile pointed out, that
“could increase the potential for the normal criminal process to be used against terrorism suspects”.
There is the flexibility of the threshold test for prosecution, which has the same standard of proof as control orders. If the charge is sufficiently serious, there is hardly any difficulty in persuading a judge of the need for the accused to be remanded in custody.
Other, obvious changes would make a conviction easier to secure. In the short debate, we have already dealt extensively with intercept evidence. I merely point out that in Australia and the United States, prosecutors regard it as extraordinary that we do not use intercept evidence. They do not understand how we manage to bring successful prosecutions without it, not only in terrorism cases, but in those involving organised crime.
David Davis: When I spoke to the head of counter-terrorism at the Department of Justice in the United States, he said that every organised crime prosecution and the vast majority—all bar one or two—of the terrorism prosecutions there require intercept evidence. He made the point that, if intercept strategy is designed to deliver evidence, a lot of evidence is obtained. That clearly does not happen currently in the UK.
Chris Huhne: I agree with the right hon. Gentleman. Contrary to the point that the Minister made in his speech, Lord Carlile states in his report that
“the use of intercept evidence in a criminal court possibly has the potential for reducing the number of control orders”.
It is not enough to say that there are some control orders with which we might not be able to proceed. Doubtless, some people who are subject to control orders are entirely innocent. However, it is simply not good enough to say that, because we could not proceed with some control orders using intercept evidence, we should not introduce it or that it could not be used in
other cases. Given that, typically, more than 2,000 warrants for interception are issued each year, it would be surprising if that were not the case.
We must remember the example that we set. Any tin-pot dictator is free to argue that the powers that he uses to buttress his regime are simply those that are in force in Britain, the mother of democracies and the mother of Parliaments. Ian Macdonald QC resigned as a special advocate for reasons of conscience, describing the control order policy as
“an odious blot on our legal landscape”.
If control order-like powers are still needed for a few individuals, they must be granted by a judge, time limited, subject to a higher standard of proof than mere reasonable suspicion, and subject to regular and thorough assessments of the possibility of prosecution. Securing convictions or letting the innocent go free should be the key goals.
Ministers said when they introduced the powers that they were only temporary. Surely after four years, the time has come for the House to hold them to their word. We will vote against the order.
4.57 pm
Mr. Robert Marshall-Andrews (Medway) (Lab): Most hon. Members remember that the legislation was passed immediately before the last general election. Many of us regard that as at least one reason for the Labour party’s sustaining a seismic loss in its popular vote in the months that followed.
The Government pray in aid the independence of the judiciary for sustaining the legislation, claiming that we can pass such legislation safely because the judiciary scrutinise and, if necessary, control it. That is an undesirable state of affairs. It is undesirable that the House should be perceived as persistently passing legislation that is contrary and abhorrent to our standards and civil liberties, and as pressing up against a judiciary that is there permanently to control it. I must say to the Minister that that is not part of the natural or normal history of this country. In many cases, the House has been the guardian of civil liberty and passed legislation to curb an overactive judiciary. Indeed, that characterised the relationship and balance of power between the two. It is a sad day when the Government rely on the judiciary as an alibi for introducing such legislation, which has not been on the statute book for 400 years. The order is not the only example, but it is an especially bad one.
My second point, which is a pragmatic one, is that it is said that there is a raft of cases, the number of which is apparently small—15 in all—where the suspected offence or potential offences are so heinous that the fact that we cannot gather enough evidence to get past the threshold test of reasonable belief in guilt means that, in those circumstances, there is no option. Bringing to bear what experience I have in the criminal courts, I do not accept that. I do not believe for one moment that a raft of such cases exists. From what I can bring to bear, I have no experience, either in terrorism cases or outside them, where, if the offences are sufficiently serious and there is evidence on which a raft of people can come to the conclusion that there is a real danger of serious crime, those who are responsible for the investigation of crime will not succeed in obtaining evidence that can be placed before a jury. What is being done is not being
done for judicial reasons; it is being done for convenience, and that is all. This House should scrutinise it and reject it.
My third point is that this measure is part of what is rapidly becoming a compendious indictment against us, America and other democratic states, for allowing such a state of affairs to happen. Of course, control orders are not unlawful rendition and in many ways they do not fall into the same category, in terms of either their lawfulness or their consequences. Nor are control orders in the same category as what the past 48 hours have revealed to be a travelogue of consistent torture, carried out by the CIA and now deliberately erased from its records. Of course control orders are not as important as that. But to a radicalised and radicalising world outside those democracies, they form part of a compendious indictment that we in these great democracies are prepared to abrogate the rule of law in certain circumstances, which are obviously aimed at those radicalising people in the Muslim world, and to suspend our way of life and our democracy in order to meet them.
For those three reasons—one pragmatic, one historical, and all, I hope, principled—if there is a vote at the end of this debate, I shall vote against the Government with a completely clear conscience.
5.2 pm
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): In view of the shortness of this debate, I intend to be much briefer than I would be otherwise. It is a great pleasure to follow the hon. and learned Member for Medway (Mr. Marshall-Andrews) and I shall be in the same Lobby as him this evening.
Let me begin by stressing how draconian such orders can be. It is perhaps worth reminding the House of Mr. Justice Sullivan’s comments in the case of the Home Secretary v. J.J. He described and outlined the nature of such orders thus:
“Each respondent is required to remain within his ‘residence’ at all times, save for...six hours,”
although that is not quite right now. Respondents were held in one-bedroom flats. They were not allowed to receive visitors other than those approved in advance by the Home Secretary. The residences were subject to spot checks by the police. The respondents were allowed out only within carefully defined areas, not including, for the most part, where they happened to live in the past.
For the most part, respondents were not allowed to meet by prearrangement any person not approved by the Home Secretary. They were required to wear tags. They were required to notify the monitoring authority before they left and when they returned. They were not allowed to have any communication equipment other than monitored fixed lines. The practical effect, of course, was that they could not work. It is therefore perhaps not surprising that Lord Bingham said that the control order system is a form of house arrest, but without the benefit of association with fellow prisoners. It is very bad indeed.
My next point deals only with non-derogating orders. The evidence on which such orders can be made falls far short of the evidence required to sustain a criminal conviction. All that is required is reasonable grounds
for suspecting that a person has been involved, or is involved, in a terrorist organisation, and a belief that the order is necessary.
My third point is that the judicial supervision involved in all this is very slight. In the case of non-derogating orders, the court will review on judicial review principles only whether the order is flawed. That is not a review on the merits; it simply asks whether the making of the order was flawed. It is true that, in the case of the derogating orders, there will be a review on the merits, but using the relatively low standard of the balance of probabilities, so the judicial intervention is slight.
I shall take up a point that was raised earlier, before I rapidly conclude. The judicial process involved is inherently flawed because the relevant material—or at least most of it—is not disclosed to the controlee. The controlee has a special advocate, but that advocate is unable to communicate to the controlee what he has been told of the intelligence, and thus cannot obtain proper instructions or learn what the controlee wishes to say on the matter.
I want to make two final points before I sit down. There is very little independent oversight of this process. It is true that the Minister must report quarterly to the House, and that we have the benefit of the independent reviewer, the noble and learned Lord Carlile. We also occasionally have reported decisions of the superior courts, but it is very difficult for the House, the public or the press to know whether what we are doing is really justified or proportionate, and whether it is being done in way that is right, proper and justified. We just do not know, and that is profoundly unsatisfactory.
Lastly, because these powers are in existence, the momentum for seeking alternatives is very much less. It is remarkable, given that Sir John Chilcot reported on intercept evidence as long ago as February 2008, that we have still made no serious progress on that. I suspect that, because these powers exist, many people who could be prosecuted are not being prosecuted, because it is so much easier for the Home Secretary to make a control order.
Had more time been available, I would have drawn the House’s attention to a number of suggestions that I have for improving these orders, if we must have them. I am not going to do that today, however, because other right hon. and hon. Members wish to speak. I am going to vote against the control orders, because they are unacceptable in a free and open society. We condemn indefinite Executive detention wherever we see it—think of the criticisms that we make of the Government of Israel—yet, in truth, we are doing exactly the same thing. We should not be doing so.
5.8 pm
Mr. Andrew Dismore (Hendon) (Lab): I rise to speak to my Committee’s report—the 14th to be published in this Parliament on counter-terrorism policy. Like every other report, we begin by agreeing with the Government on the importance of the obligations imposed on them by human rights law to take effective steps to protect the public from the real threat of terrorism. However, we have consistently raised a number of human rights concerns about the legislation on control orders. Those concerns include:
“The lack of opportunity for proper parliamentary scrutiny”,
“The severe extent of the obligations imposed, which have appeared to us to be so restrictive as to amount to the deprivation of liberty”,
as well as the lack of due process, particularly
“the lack of opportunity to challenge closed material”.
“The seriousness or otherwise of the Government’s commitment to prosecution”,
and the lack of an exit strategy.
The only thing that we welcome is the fact that we got the reviewer’s report a month in advance of this debate, following our recommendation, which had been repeated on many occasions, that we should be allowed time to give proper consideration to it.
The concluding observations of the United Nations Human Rights Committee on the UK’s compliance with the International Covenant on Civil and Political Rights included a recommendation that the Government should ensure that the judicial process for challenging the imposition of a control order complies with the principle of equality of arms, which it clearly does not.
Mention has been made of the ECHR judgment in the Grand Chamber of 19 February. That concerned Belmarsh detainees, but the issues in that case are exactly the same as those affecting control orders. The Court said that special advocates could not perform their function of safeguarding the detainee’s interests during closed hearings in any useful way unless the detainee was provided with sufficient information about the allegations against him. We also drew attention to the report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, published on 17 February, which expresses concern about a “parallel legal system” developing, so undermining the rule of law.
The orders are punitive. We have seen curfews of up to 16 hours and, on average, they have gone up on from running for 10 hours last year to 13 hours in this report. Lord Brown, who ruled on this, has been misquoted. His actual view, as reported, was:
“It may be... that 16 hours it is too long. I would, however, leave it to the Strasbourg Court to decide upon that”.
The Government have interpreted that as if he was saying that 16 hours is the benchmark, but that is not what Lord Brown said at all.
I have many concerns about the issue of due process. We produced a whole series of recommendations when we debated the Counter-Terrorism Bill in the last Session, but, unfortunately, the Government did not accept any of them. I nevertheless urge the Government to consider again at least providing a statement of at least the gist of any closed material in accordance with the decision of the European Court—and, I hope, the forthcoming decision of the House of Lords—as that is the key issue in the case being tried today. The Minister’s predecessor offered to meet the special advocates who planned to describe to him the inherent potential unfairness in the regime, but unfortunately, that Minister did not keep his promise, as he was shifted to another position before, I suspect, he had the opportunity to do so. I hope that the current Minister will undertake to keep that promise.
Mr. Coaker: Let me assure my hon. Friend that I will ensure that that happens.
Mr. Dismore: I am grateful to the Minister for repeating that commitment, as the current system is reminiscent of the infamous Henry VIII Star Chamber court: people are not told the case against them; they are not allowed their own choice of lawyer to defend them; the lawyer does not know the case he has to defend; and, in the end, people are not even provided with the reasons for the decision to subject them to a control order. As we now know from the Belmarsh cases and others, a control order can mean seven years, which, with proper remission taken into account, is equivalent to a 14-year prison sentence, yet not many terrorism offences carry that weight of penalty. We should bear that in mind.
Much has been said about intercept. It is a year since the Chilcot inquiry reported and the Prime Minister has given an undertaking to accept the report in principle, so perhaps the Minister will explain why we have as yet seen no outcomes.
Lord Carlile spoke about the exit strategy last year and this year repeated what he had said, but we have no exit strategy. Our Committee recommended, following on from Lord Carlile, that no control order should be continued beyond two years, save in exceptional circumstances. In many cases, these people are no longer a threat. Realistically, what terrorist organisation is going to keep on its books someone who has been in detention of one form or another and subject to scrutiny for that period?
If the President of America is going to close Guantanamo Bay, surely we should adopt the same approach in respect of control orders. We must have an alternative—a human rights-compliant alternative. That has been the recommendation of my Committee time and again as a means of dealing with those people of whom we have such fears.
5.13 pm
David Davis (Haltemprice and Howden) (Con): If we looked at this issue solely from the point of view of effectiveness against terrorism, it would fail the test. It is no good solving a single problem if that solution creates 100 further problems. A number of hon. Members have made the point that this works to exacerbate radicalisation.
It is worth considering the size of the problem. When Lady Manningham-Buller made her last speech on the matter, she said there were 1,600 radicals in the country; one year later, Jonathan Evans, then head of MI5, said it was more than 2,000—an enormous number and it is growing at 25 per cent. a year. The reason for that is the perceived injustice by the Muslim community of a number of measures—42 days’ detention, 90 days’ detention and these control orders. The simple fact is, as the Liberal spokesman said and as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) reiterated, that this is a Kafkaesque process in which people are given almost no knowledge of the evidence and very little knowledge of the accusation.
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