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Noble Lords: Five!

Lord Grocott: My Lords, I beg noble Lords' pardon—I am making the mistake that I am accusing everyone else of making. As soon as the five goes up, it is time to finish. Please assist us all in that respect.

Moved, That the debate on the Motion in the name of the Baroness Whitaker set down for today shall be limited to three hours and that in the name of the Lord Hunt of Kings Heath to three and a half hours.—(Lord Grocott.)

On Question, Motion agreed to.

Anti-terrorism, Crime and Security Act 2001: Part 4 Powers

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, with the leave of the House, I shall now repeat a Statement made earlier today in another place by my right honourable friend the Home Secretary. The Statement is as follows:

"With permission, Mr Speaker, I should like to make a Statement about the future of the powers in Part 4 of the Anti-terrorism, Crime and Security Act 2001 (the ATCS Act).
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"These matters have of course received the closest attention in this House and in another place through the work of the Intelligence and Security Committee, the Home Affairs Committee and the Joint Committee on Human Rights, to all of which I pay respect. I appreciate, too, the valuable work carried out by a committee of Privy Counsellors under the chairmanship of the right honourable Lord Newton of Braintree, and of course we have the regular advice of Lord Carlile of Berriew on the operation of both the Anti-terrorism, Crime and Security Act 2001 Part 4 powers and the Terrorism Act 2000. This work shows the comprehensive scrutiny which both Houses give to these difficult issues. Of course, what I am saying today follows on from the consultation paper which my predecessor published in February last year and which has informed the conclusions I am presenting today.

"As the House well knows, the Part 4 powers are immigration powers. They enable me to certify and detain, pending deportation, suspected international terrorists who, because of our international commitments, we cannot remove.

"Despite concerns when we legislated for Part 4, the powers have been used very sparingly with only 17 people certified since the powers were introduced. Those currently certified and detained were certified as being suspected international terrorists on the basis of a careful Security Service assessment of the significant threat they pose, and that judgment has been upheld regularly by the Special Immigration Appeals Commission.

"On 16 December last year, the House of Lords Judicial Committee handed down its judgment on the compatibility of the Part 4 powers with the ECHR. It quashed the Human Rights 1998 (Designated Derogation) Order 2001 and declared Section 23 of the ATCS Act incompatible with Article 5 (the right to liberty) and Article 14 (freedom from discrimination) of the ECHR.

"It did so because it considered that the Part 4 powers were discriminatory in that they applied only to foreign nationals and that, as a response to the threat we faced from terrorism, they were not proportionate.

"It is true that the Part 4 powers apply only to foreign nationals. The reason for this is that, when we looked at the very real threat we faced from international terrorism in the immediate aftermath of the terrible events of 11 September, we were able to identify a small number of foreign nationals resident here who posed a particular danger to us. Prosecution for their activities was not possible for evidential reasons, although two of those certified and detained under the Part 4 powers have since been convicted of criminal offences, and there was no realistic prospect of deporting them.

"The Part 4 powers were the means of containing their activities where prosecution was not possible. I can tell the House that the Government believe that the powers have played an essential part in
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addressing the current public emergency because they have been successful in containing the threat posed by those certified and detained under them.

"They have, moreover, had another effect. It is clear from the intelligence reports that I have seen that the existence, and use, of these powers has helped to make the United Kingdom a far more hostile environment for international terrorists to operate in, with the result that some have been deterred from coming here and others have left entirely to avoid being certified and detained. I am pleased about that. The United Kingdom must never be regarded as a soft touch or a safe haven for terrorists.

"The Government believed that the Part 4 powers were justified because: the threat appeared to come predominantly, albeit not exclusively, from foreign nationals; foreign nationals do not have the same right to be here as British nationals; and, against the background of the strong condemnation of terrorism contained in UN Security Council Resolution 1373, it was necessary to take positive action against peripatetic terrorists who happened to be living here.

"That said, however, I accept the Law Lords' declaration of incompatibility with the ECHR of Section 23 of the ATCS Act. I accept, too, the Lords' judgment that new legislative measures must apply equally to nationals as well as non-nationals. But we still need to decide how to deal with the threat presented by terrorists without the assistance of the Part 4 powers.

"My starting point is the threat which we face. This is of course a heavy responsibility for all concerned and one which has the highest priority of all. That is why I have to take account of events happening around the world and, in particular, here at home. I have had frequent discussions with the Director-General of the Security Service and the Commissioner of the Metropolitan Police since my appointment. I am left in absolutely no doubt that nothing has happened recently which diminishes the threat or calls into question the state of public emergency threatening the life of the nation.

"The ATCS Act was enacted because there was an unprecedented terrorist threat to the United Kingdom, which was assessed to emanate from Al'Qaeda and those individuals and groups within the loosely co-ordinated series of overlapping terrorist networks linked to it. Our understanding of the threat has advanced since then, both from an increasing intelligence base and through the investigation of both successful and thwarted attacks. It is clear that some British nationals are now playing a more significant role in these threats. At the same time, networks, consisting of foreign nationals with international links, remain.

"Within the past year, for example, we have seen the multiple attacks in Spain in March 2004, attacks at Al Khubar in Saudi Arabia in May, the attack on the Australian Embassy in Jakarta, Indonesia in
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September, an attack on an Israeli-owned hotel in Egypt in October and the attack on the US consulate in Jeddah in Saudi Arabia in December 2004.

"In these circumstances, I repeat, my judgment is that there remains a public emergency threatening the life of the nation. The absence of the Part 4 powers would present us with real difficulties, and so I now set out the ways in which we can meet this threat.

"The Government believe that the answer lies in a twin-track approach: specifically, deportation with assurances for foreign nationals who we can and should deport; and a new mechanism—control orders—for containing and disrupting those who we cannot prosecute or deport.

"As the House knows, we have been trying for some time now to address the problems posed by individuals whose deportation could fall foul of our international obligations by seeking Memoranda of Understanding (MoUs) with their countries of origin. We are currently focusing our attention on certain key Middle Eastern and North African countries. I am determined to progress this with energy. My right honourable and noble friend Lady Symons of Vernham Dean visited the region last week and she had positive discussions with a number of countries on which we are now seeking to build.

"I want to make it clear that prosecution is, and will remain, our preferred way forward when dealing with all terrorists, and all agencies do operate, and will continue to operate, on this basis. But all of us need to recognise that it is not always possible to bring charges, given the need to protect highly sensitive sources and techniques.

"There is a widespread misconception that if only we could adduce intercept as evidence we should be able to prosecute those detained. However, the review of intercept as evidence found no evidence to support this and I have consequently made a Written Statement today stating that the Government do not intend to change the existing arrangements.

"Intercept provides only part of the intelligence against individuals, sometimes a small part. It does not stand alone. Some of the material we have in these cases is inadmissible, and other material while technically admissible could not be adduced without compromising national security, damaging relationships with foreign powers or intelligence agencies, or putting the lives of sources at risk.

"So there are cases where we remain unable to prosecute. However, that does not mean that we should do nothing to forestall or prevent suspected terrorists planning, assisting or otherwise supporting those willing to carry out attacks.

"The Government have therefore decided to replace the Part 4 powers with a new system of control orders. We intend that such orders should be capable of general application to any suspected terrorist irrespective of nationality or, for most of the controls, the nature of the terrorist activity (international or
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domestic) and enable us to impose conditions constraining the ability of those subject to the orders to engage in terrorist-related activities.

"Control orders would be used only in serious cases. The controls imposed would be proportionate to the threat each individual posed. Such orders would be preventive—designed to disrupt those seeking to carry out attacks, et cetera, whether here or elsewhere, or who are planning or otherwise supporting such activities. They would be designed directly to address two of the Law Lords' concerns— on discrimination and proportionality.

"The key features of the scheme will be: that the Secretary of State would consider whether, on the basis of an intelligence assessment provided by the Security Service, there are reasonable grounds for suspecting that an individual is or has been concerned with terrorism; and, if the answer to this is yes, and he or she considers it necessary for the purposes of protecting the public from terrorist-related activities, he or she would impose controls on that individual. There would be a range of controls restricting movement and association or other communication with named individuals; the imposition of curfews and/or tagging; other restrictions on access to telecommunications, the Internet and other technology. At the top end, control orders would include a requirement to remain at their premises; the controls to be imposed under the new scheme will not include detention in prison although I intend that breach of a control order should be a criminal offence, triable in the usual way through the criminal courts and punishable by imprisonment; there will be independent judicial scrutiny involving the hearing of evidence in open and closed session, against the imposition of the order or any subsequent variation of its provisions; a mechanism for reviewing and modifying conditions as circumstances warrant subject again to independent judicial scrutiny; other safeguards will include the Secretary of State reporting regularly to Parliament on the number of orders made et cetera; independent annual review of the powers, as now with the Part 4 powers; and annual renewal of the powers. I am considering separately what role the ISC might play here.

"The Government, of course, intend to ensure that any future powers we take in legislation are wholly compatible with the provisions of the ECHR, if necessary employing a new derogation to that effect.

"I have sought advice from the Director-General of the Security Service and the Metropolitan Police Commissioner about the powers we need to deal effectively with the public emergency threatening the life of the nation, and to deal with British and Foreign nationals whom we have grounds to believe are engaged in terrorism. On the basis of their advice, my judgment is that the range of powers I have outlined above, including a criminal sanction for breach, will be essential if we are to contain the threat which those who may be made subject to control orders pose to public safety.
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"I told the House on 16 December that I intended to renew the Part 4 powers as necessary. However, my desire is to bring forward a Bill to give effect to control orders as soon as practicable. I can see advantages if it were possible to enact the Bill to a timescale which makes renewal unnecessary. Should that not be possible, I will seek to renew the Part 4 powers for the limited time necessary to put the new arrangements in place. I will need to lay the renewal order in draft and will do so tomorrow.

"For this reason I will not be revoking the certificates on the current detainees between now and when the new legislation is in place, unless the threat they pose changes and they no longer meet the criteria for certification.

"Those currently certified and detained were certified as being suspected international terrorists on the basis of a careful Security Service assessment of the significant threat they pose, and that judgment has been upheld by the Special Immigration Appeals Commission.

"We believe that those detained under the Part 4 powers continue to pose a threat to national security and that we should seek to ensure that we take all the necessary steps to address that threat.

"These are all difficult issues with no easy answers. A careful balance has to be struck between the rights of individuals and the protection of society against threats from organisations which seek to destroy central attributes of our society, such as freedom of belief, speech and association, freedom of expression and even our central democracy. All parts of our society—Parliament, the legal system, the media—need an open debate about this so that we understand the complexities of the security situation we face. I will shortly be bringing forward detailed proposals about the best way to conduct this debate.

"My principal responsibility as Home Secretary is to preserve our democracy against those who seek to destroy it through terrorist attacks. The threat is real and I believe that the steps I am announcing today will enable us more effectively to meet that threat.

"I am, of course, very well aware that the proposals I am making today represent a very substantial increase in the executive powers of the state in relation to British citizens who we fear are preparing terrorist activities and against whom we cannot proceed in open court.

"This will be contentious but I believe the need for us to protect ourselves against the threat justifies the changes I propose. I commend this Statement to the House".

My Lords, that concludes the statement.

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