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Mr. Hanson: The hon. Gentleman will know that there is an ongoing review following the Privy Council's examination of this matter. I hope that he will also know that in the original Privy Council report, the review by independent senior criminal counsel of nine current and former control order cases concluded that the introduction of intercept as evidence would not have enabled a prosecution to be brought in any of those cases. So, although it is an important issue to examine, it would not be a panacea in terms of securing convictions in any such cases.
Mr. Blunt: As the Minister well knows, there are far wider arguments than those regarding control orders about the use of intercept as evidence. We should at least consider explicitly revisiting the terms of the Chilcot review, particularly regarding the requirement for intercept as evidence to be operationally workable, because such conditions might be too onerous to achieve the desired outcome-an outcome that is in line with our core values as a parliamentary democracy operating under the rule of law. I hope that a review of those operational requirements is now taking place implicitly. Without access to the intelligence and to information about the methods, it is difficult to draw a considered conclusion on intercept, but I want to take this opportunity to signal that we remain of the view that the potential benefits are so substantial that serious work must continue to be undertaken about its possible use.
David Davis: May I ask my hon. Friend to look again at the public dimension of the intercept review? What was said was that a Finnish case had introduced a new element to the matter that made things very difficult. I have looked at that case, in which the European Court of Human Rights intervened, entirely properly, because a grotesque injustice was being administered by the Finnish authorities-something that I hope that we would not do. As a result, the arguments against intercept that were marshalled publicly were totally wrong.
Mr. Blunt: I am grateful to my right hon. Friend for drawing my attention to that point. It is appropriate to recognise the substantial debt that the House owes to him for the work that he has done, both when he was the shadow Home Secretary and since, to champion the values and liberties of us all.
Finally, I would like to finish on a more consensual note, of which my right hon. Friend may or may not approve. Putting aside our arguments over the legislative and political response to the terrorist threat, which have produced some of the most substantial and impressive parliamentary events in what has otherwise been a dismal Parliament, it is appropriate to recognise the administrative work that has been done to help to provide security for our citizens. Our current national security strategy has its faults, but, overall, the conception of the Contest framework and the establishment and administration of the office for security and counter-terrorism in the Home Office have been widely recognised as successful and those models are now being widely copied around the world. Although it is invidious to identify individuals, and I am sure that they would not thank me for doing so, in the privacy of a debate in the House of Commons I want to recognise and acknowledge
the debt that our nation owes to Sir David Omand for the conception of today's security policy and to Charles Farr, who leads the office for security and counter-terrorism in such an effective and widely admired way.
That successful administration also requires a political lead and in what is probably the last time that we will debate terrorism measures before Dissolution, the contribution of the right hon. Member for Airdrie and Shotts (John Reid) should not be overlooked. I tried to let him know that I would be saying these things, but, sadly, he is not present. We should recognise that his leadership and drive as Home Secretary made an important contribution to one of the more successful areas of this Government's administration. The nation is in his debt for his service. I think that it will come to be seen as a calamity for his party that there was not a wider appreciation of his abilities when set against another Scottish Labour politician in 2007. I certainly believe that our country would have been better served had he remained on the Treasury Bench after June 2007. That has been our nation's loss, and it will be the House's loss when we lose his services at Dissolution.
Mr. Andrew Dismore (Hendon) (Lab): This is our fifth debate on control order renewal. There is a risk of temporary measures becoming permanent, and that is one of my main concerns about how control orders have developed. The Joint Committee on Human Rights, which I chair, accepts that there is a positive obligation on the state to protect us all against terrorism, but it is becoming increasingly clear, year on year, that the system is unfair, not compliant with the European convention on human rights, counter-productive, and now, in our view, unsustainable.
For years I have set out my Committee's reservations about the lack of procedural justice, and have on various occasions proposed amendments to counter-terrorism legislation. However, I shall start on a slightly different tack tonight. I want to talk about the impact of control orders on the individuals concerned. Our inquiry heard evidence from solicitors who represent individuals who are the subject of control orders. One such solicitor, Gareth Peirce, who has had many years of experience of acting in terrorism cases, described the primary sensation of those who are subject to control orders as "despair" and feeling "utterly impotent". She described how at one point, three of her clients who were subject to control orders were all in the health section of Belmarsh prison, all having been imprisoned because they were in breach of their control orders, having made serious attempts on their lives and having been left, either temporarily or permanently, by their wives.
Gareth Peirce described the impact of a control order on the relevant person and their family as "colossal". The whole family is affected by the conditions of a control order, which can prevent visits to the house without authorisation, as well as the use of phones, computers and the internet. I ask hon. Members to think about the effect on children over the age of seven of not being allowed to use a computer, bearing in mind how important access to the internet is for their school work. There have been repeated situations in which bright, academically high-achieving children have been in trouble at school or have fallen by the wayside as a result of such conditions, despite repeated requests
having been made to allow them such access-even in a case in which the relevant man could not read or write English and was completely computer illiterate. In summary, the impact can be, and usually is, colossal on the relevant person and his family.
We now see the growing use of a new form of control order-internal exile. Such orders have been applied to British citizens who have grown up in east London all their lives and whose grandparents, or whose wife's grandparents, are there. Men have been parachuted suddenly into Nottinghamshire or Gloucestershire and told that they have to live there from then on, as a modification of their control order. The women in such cases are treated with complete contempt. It is as though they do not exist. The man is told, "Your wife, if she works, can find another job; she can join you if she wants to or she can stay in east London. We know that you can find schools for the children in the area."
The effect on a number of families has been quite extraordinary. That situation might affect only a small number of people, but its contribution to what one might call the folklore of injustice is colossal. It is not something that other people in the community are in ignorance of; it is highlighted because of the perception of the extent of the injustice, so it has a wide effect. Of the 12 controlees-now 11, we are told-eight have been required to relocate, but two of those relocation conditions were subsequently overturned by the court.
It seems that the use of that condition is becoming more frequent in relation to the so-called light-touch control orders. Of the 45 original control orders, only 17 were required to relocate, so the proportion is much higher now than before. The same tactic was used under apartheid in South Africa, but it did not do any good. It was used by Tsarists in Russia, but it did not do them any good, and it was used by the colonels in Greece, and it did not do them any good, either. Internal exile does not work; it is counter-productive and creates more problems than it solves.
The Committee also heard about delays in modifying control orders. Another solicitor told us that one of his clients made an application for various conditions to be varied, among other things so that he could attend a college course, and use a particular dentist with whom his wife and children were registered, just outside the boundary of where he was allowed to go. All those requests were refused and an appeal was lodged in February last year, but it took until July for the court to hear the case. By then the college course was done, and presumably the man's wife had found another dentist.
I mentioned in my intervention the cost of control orders, as hon. Members question their efficiency. Our Committee feels a growing sense that their financial cost has become disproportionate to any benefit that can plausibly be claimed for them. We have had a lot of correspondence on this issue and we have dug out the figures. So far, there is a running total of £13 million over three years, including £8.1 million in legal costs, £2.7 million in administrative costs and £2 million to the Legal Services Commission for publicly funded representation.
That is just the start of the tab. The representation figure does not include ongoing cases, because the bill is submitted only at the end of a case. It does not include the cost of the compensation the Government will now have to pay in relation to cases thrown out by the courts
as a result of the AF judgment. Nor does it include the costs of running the courts, bearing in mind the dozens of hearings-from the High Court all the way to the House of Lords, and now the Supreme Court.
When we put all that lot together, the estimate is enormous. Even on those figures, the amount is more than £1 million per controlee. Although the Government will not tell us the daily cost of round-the-clock 24-hour surveillance-because we have to assume that some people are under surveillance as well as being subject to control orders-£1 million must buy an awful lot of police officers and security service people. Surely, that would be a more effective way of using public money than spending it on Queen's Counsel, bureaucrats and courts, and a much better way of keeping us safe than having cases trailed through the courts.
I have already mentioned procedural issues. Time and again, my Committee has been proved right and the Government proved wrong. I want to deal with just one aspect-gisting. Last year, in the renewal debate, we heard about the case in the Grand Chamber of A v. UK. The Government said it had no wider application and applied only to deprivation of liberty cases. Surprise, surprise, less than six months later in June 2009, as we predicted, in AF v. the Home Secretary, the House of Lords said that under article 6 the same provisions for the conduct of a fair trial applied in the context of all control orders.
"Where...the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be."
As a consequence, the Government were to review all current cases. What happened? The AF control order was lifted, because the Government did not want to give the gist of his case, so he is now presumably subject to surveillance. In total, six orders were revoked. Two were found not to have been necessary in the first place, which is somewhat ironic, if not insulting to those concerned, and one was lifted by order of the court. The Government lifted three because they did not want to gist, so two were replaced by so-called light-touch control orders.
Light-touch control orders are a whole new avenue for the lawyers. The Government say that article 6 does not apply. That argument has already been rejected by the High Court and will no doubt be rejected by higher courts as well, because the basic principle of a fair trial applies whether the control order is light touch or more serious. We are now told that the Government do not intend to amend the Prevention of Terrorism Act 2005, so we have an Alice in Wonderland scenario where the relevant provisions on control orders in the Act are now to be read as meaning exactly the opposite of what the Act says about disclosure. The Act says there cannot be disclosure, but now we have to read it as though there has to be disclosure, and the Government are not prepared to amend it to make it comply with what the House of Lords has said.
In practice, gisting is not really happening effectively. The special advocates who gave evidence to us complained about the minimalist approach. They said that it was an
iterative way of proceeding-giving a bit of evidence at a time. That is unfair to controlees, because they are expected to answer part of a case, then a bit more and then a bit more.
We are told that the security services are institutionally cautious in how they proceed. One of the real complaints is that late disclosure is endemic in the system. We were told by special advocates that they were given great piles of paper on a Friday for a Monday hearing-large volumes of material that they are not allowed to take home, and which has to stay locked in a safe in their chambers. In no way can they prepare properly for cases. As was said earlier, the Government do not gist in light-touch cases anyway.
Special advocates have real complaints about the processes. We have heard many of the complaints before, so I shall not go into them all again. They include lack of access to independent expertise in evidence, so there is nil ability to challenge Government objections to disclosure because advocates do not have the expert evidence to back it up. Most important of all is the lack of ability to communicate with the affected person after they have seen the closed evidence. There is even a problem in accessing previous court judgments and decisions, to find out what the precedents are. Everything is done by word of mouth and there is no proper way of proceeding. I have raised the issue with my right hon. Friend the Minister in parliamentary questions, but we have had no sensible answer.
"Control orders...legislation is fully compliant with Article 6."
Only if there is proper gisting-sufficient gisting to give the controlee the substance of the case they have to answer-can the case be compliant with article 6. Now we know, through the new process of light-touch control orders, that the Government are saying that article 6 does not apply. We say it does. The High Court has already said it does. The matter is going to the Court of Appeal, and no doubt all the way up to the Supreme Court and Strasbourg. They will all say the same thing, it will come down again and we shall be back where we started.
"A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him."
Mr. Hanson: For the avoidance of doubt, I stand by the comments in my letter to my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones). There is an honest disagreement between my hon. Friend the Member for Hendon (Mr. Dismore) and the Government's legal advice on the matter.
Mr. Dismore: My right hon. Friend makes his point. I simply say that in every case that has been appealed so far, we have been proved right and the Government have been proved wrong. Our track record is rather better than my right hon. Friend's-so far. I anticipate that the same process will continue, and no doubt we shall hear the same arguments about article 6 applied to light-touch control orders.
Special advocates say that they should be allowed to communicate at least about the legal strategy and procedural issues relating to the case. They also say, and I agree, that they should be allowed to apply to the court, without giving notice to the Secretary of State, for permission to ask questions of their clients. As an international comparator, I cite the fact that that procedure is adopted in Canada-and it is sensible.
We need to look at the special advocate system. There are no fewer than 22 different types of court hearing in which special advocates can be used-22 different ways in which secret evidence can be heard in our courts, from planning inquiries right up to the control order regime, and many other things as well. The system has grown like Topsy, and we need a proper review to make sure that the special advocate system-not just in relation to control orders-is proper and fair across the board.
David Davis: The hon. Gentleman makes a good legal case; he is supported by the judges and the Government are not. For me, however, the most important issue is a practical one: our agencies currently have great difficulty dealing with the sheer number of suspects that they face. Any strategy should be designed to reduce the number of people who are radicalised. Does the hon. Gentleman agree that the policy will actually radicalise more young Muslims?
Mr. Dismore: I agree. That is the point I made earlier when I was talking about the impact on families. The way the orders spill out into the wider community is completely disproportionate, because of the sense of injustice it creates.
Last year, when we debated the continuation motion, my hon. Friend the Member for Gedling (Mr. Coaker)-now the Minister for Schools and Learners-promised to meet special advocates, as had his predecessor, my right hon. Friend the Member for Harrow, East (Mr. McNulty), before him. Neither of those meetings took place, so will my right hon. Friend the Minister for Policing, Crime and Counter-Terrorism meet the special advocates and listen to their concerns about the fairness of the process? Will he also involve the security services in the meeting so that we can try to reach consensus about what can be done to make the system fairer? My Committee recommended a forum for special advocates, the Government and the security services to discuss the issues of principle involved and see what can be done-not on specific cases, but to make the system better.
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