Letter to the Chairman from Lord West
of Spithead, Parliamentary Under-Secretary of State, Home Office,
22 October 2009
When I appeared before your committee to give
evidence on the Home Office's counter-terrorism policy I agreed
to write with more details on a number of issues. In particular
more information was requested on control orders (the number of
individuals currently under a control order and the timescales
for the completion of the review of each control order in light
of the House of Lords judgment in AF & Others) and on the
number of interception of communication warrants in the last five
years.
CONTROL ORDERS
The most recent Written Ministerial Statement
on control orders was laid before Parliament on 16 September
2009. As of 10 September 2009, the last date covered by that
statement, 15 individuals were subject to a control order.
In June 2009 the House of Lords handed
down judgment in AF & Others. The House of Lords maintained
the Lords' October 2007 read down of control orders legislation,
but felt obliged to take into account the February 2009 European
Court of Human Rights' (ECtHR) judgment in A & Others.
The Law Lords concluded that they had to replicate the test of
the February 2009 European Court of Human Rights judgment
in A & Others (handed down shortly before commencement
of the House of Lords hearing) for the stringent control orders
before them. Consequently, in order for such control order proceedings
to be compatible with Article 6, the controlled person must be
given sufficient information about the allegations against him
to enable him to give effective instructions in relation to those
allegations. The three cases before the Law Lords were remitted
back to the High Court to consider in the light of this judgment.
As set out in the 16 September Written
Ministerial Statement, the Government has already completed its
review of all current control order cases to see what further
disclosure will be required in the light of the June 2009 Lords
judgment—and whether it was possible to make that disclosure
despite the fact that to do so would cause damage to the public
interest. The Government considered that some control orders would
not be adversely affected by the judgment. But the Government
recognised that the judgment would require a greater degree of
disclosure to be made in many control order cases. In those cases,
the Government is making representations to the special advocates
and the court on the extent of disclosure required within the
timescales set down for the High Court proceedings in each case.
The High Court will consider the compliance of each individual
control order with the right to a fair trial, in the light of
the AF & Others test. Where the Government concludes
in relation to any control order that it will not be able to make
enough disclosure to the controlled person to comply with Article
6, we will consider revoking the order.
As of 10 September, only one control order
had been revoked and not replaced by a new one as a result of
the judgment—the order against AF. As you will know, there
has subsequently been publicity surrounding a similar revocation
in the case of AE. In these cases we reached the view that it
was not possible to make the required further disclosure because
of the serious damage that would be caused, and so revoked the
orders without replacing them by new orders.
As the Government has made clear, where the
disclosure required by the court cannot be made for the protection
of the public interest, including our national security, we may
be forced to revoke control orders even where we consider those
orders to be necessary to protect the public from a risk of terrorism.
You will appreciate that the Government cannot
comment on the detailed measures being taken to mitigate the threat
posed by individuals in relation to whom control orders have been
revoked. In such circumstances we will take all steps necessary
to protect the public. The police and Security Service seek to
investigate and monitor the activities of those believed to pose
a threat to national security.
In some cases, such as these, the Government
will face difficult choices as to how best to protect the public
interest. We have to balance the importance of protecting the
public from the risk of terrorism posed by the individual against
the risk of disclosing sensitive material. Disclosing this material
would reduce the Government's ability to protect the public from
a risk of terrorism and in some cases could put lives at risk.
In these cases we decided that the risks posed by disclosure were
too great. However these decisions can only be made on a case
by case basis. In the case of AM, the assessment has been made
that some damaging disclosure can be made.
The Government's current assessment is therefore
that the control order regime remains viable following the House
of Lords judgment and that the national security reasons for maintaining
the regime have not changed. However, as further control order
cases are considered by the courts during the autumn we will be
keeping this assessment under review.
The Government will in due course publish as
a Command Paper its memorandum on post-legislative scrutiny of
the Prevention of Terrorism Act 2005, as part of its commitment
to a new mechanism for post-legislative scrutiny of Acts that
received Royal Assent from 2005 onwards. Post-legislative
scrutiny memoranda will allow the relevant Parliamentary Select
Committee, in this case the Home Affairs Select Committee, to
decide whether it should undertake full post-legislative scrutiny
of the Act in question. The memorandum on the 2005 Act will
provide an opportunity for the Government to explain its developing
thinking on the regime.
In addition to this ongoing review within the
Home Office, the Home Secretary has formally asked the independent
reviewer of terrorism legislation including the 2005 Act,
the Lord Carlile of Berriew QC, to review the impact of the House
of Lords judgment and to consider whether the assessment that
the regime remains viable is right. This will form part of Lord
Carlile's next annual report on the operation of control orders
legislation, which will be published early next year. His report
will of course helpfully be informed by the High Court's consideration
of further control order cases over the coming months.
INTERCEPTION WARRANTS
The Committee also asked about the number of
intercept warrants that have been processed in the last five years
and in particular on counter terrorism issues. The following is
the total number of intercept warrants issued in each of those
years as reported by the Interception Commissioner:
|
| Year | Interception warrants authorised by the
Home Secretary or Scottish Executive
|
|
| 2004 (1.1.04-31.12.04) | 1,973
|
| 2005-06 (1.1.05-31.3.06) | 2,407
|
| 2006 (1.4.06-31.12.06) | 1,435
|
| 2007 (1.1.07-31.12.07) | 2,026
|
| 2008 (1.1.08-31.12.08) | 1,712
|
|
| |
The Interception Commissioner's reports, containing these
statistics, are lodged in the House Library. In the Commissioner's
most recent report for 2008, he states (at paragraph 5.3) that
he is "not persuaded that there is any serious risk in the
publication of the number of warrants issued by the Home Secretary
and the First Minister for Scotland". He goes on to state
that "This information does not provide hostile agencies
with any indication of the targets because […] the total
includes not only warrants issued in the interest of national
security, but also for the prevention and detection of serious
crime".
A further breakdown of the statistics would give an indication
of the pattern of interception and capability and therefore I
regret that I cannot provide a further breakdown, nor comment
on the number of counter terrorism cases in which intercept product
might have utility as evidence, without damaging national security.
| 
