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Baroness Linklater of Butterstone: First, I did not say and I have never said that there is not a need for secure provision for young people; it is the type of secure provision that we are talking about here. I

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thank everyone who has taken part in this important debate. I shall not forget the kind words that have been said around this Chamber. I thank noble Lords for that. I shall also not forget—I hope that the Minister hears this very clearly—the words from the lips of the noble and learned Baroness, Lady Butler-Sloss, who said just how very vulnerable these 17 year-olds are. The statistics I have used—on self harming, suicide and so on— prove that.

I recognise that the Government’s intentions are good, but I would like to remind the Minister that secure training centres—child prisons where the children are as young as 12—are a child of this Government. When he talks about, for example, how inappropriate it is to put 17 year-olds in secure children’s homes, which are actually designed for them, he is perhaps forgetting not only the vulnerabilities but the implications of putting 17 year-olds with much older and, as it were, much more experienced prisoners in the prison estate. YOIs are very much a part of the prison estate.

The noble Lord said that he could not see why 17 year-olds should not go to YOIs as they would present a risk to younger children in secure children’s homes. Of course there are secure children’s homes that cater for children with welfare issues. There are others which do not and there is endless scope, if we take up the challenge, of developing the work in secure children’s homes. I would love to take the Minister to one or two that I know very well, particularly in Scotland. It is a different world there, where children do not need to have their bones broken when they are restrained. That simply does not happen.

For the moment, I have said enough. I feel very strongly about this, as the Minister understands. I have listened hard to what he said and it is almost inevitable that we shall return to this matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 116 not moved.]

Schedule 21 agreed to.

Clause 103 agreed to.

Schedule 22 agreed to.

Clause 104 agreed to.

Baroness Royall of Blaisdon: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.


7.49 pm

Baroness Royall of Blaisdon: My Lords, I beg to move that the House do now adjourn during pleasure until 7.59 pm, the reason being that many noble Lords who have been participating in our Committee debates are going to participate in the dinner hour business. I thought that it might be useful for them to have a short break.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.49 to 7.59 pm.]

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Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2008

7.59 pm

The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead) rose to move, That the draft order laid before the House on 30 January be approved.

The noble Lord said: My Lords, the purpose of the order before the House is to renew the Prevention of Terrorism Act 2005. The Act automatically lapses after one year unless renewed by order subject to affirmative resolution in both Houses. The effect of this order will therefore be to maintain the powers set out under the Act until the end of 10 March 2009. This will allow us to continue to use control orders to tackle the threat posed to national security by suspected terrorists whom we can neither prosecute nor deport. The other place voted in favour of renewal on 21 February.

Over the past few years, we have witnessed a number of appalling attacks on our country. Those attacks have sought to undermine our fundamental rights and values through the indiscriminate murder of innocent people. The director-general of the Security Service stated in November last year that,

in the United Kingdom,

The threat is clearly real and it is serious. Faced with a threat of this scale, it would be naive to suggest that there is a simple solution. We need a range of responses to reduce the risk of further terrorist attacks. The balance between individual liberty and public security is key. We must ensure that we protect all our values and civil liberties while defending the most fundamental of these—the right to life.

Let me make this clear. Prosecution is, and will continue to be, our preferred approach when dealing with suspected terrorists. In 2007 alone, 37 people were convicted of terrorism-related offences in 15 cases, and so far in 2008 16 people have been convicted of significant terrorist-related offences. However, we need to ensure that we maximise our ability to prosecute suspected terrorists, and we have sought to do this in a number of ways.

First, we have introduced new offences in the Terrorism Act 2006, which have already been used successfully. We are also studying the recent Court of Appeal judgment overturning convictions under Section 57 of the Terrorism Act, including any implications that it may have for our wider counterterrorism legislation and strategy. However, the Director of Public Prosecutions has already stated that the judgment was,

and was therefore unlikely significantly to affect existing convictions or forthcoming prosecutions. Secondly, we have proposed measures in the Counter-Terrorism Bill to extend post-charge questioning of suspected terrorists. Thirdly, we have accepted the recommendations

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set out in the Chilcot recommendation for the introduction of intercept as evidence, provided that the conditions outlined can be met. However, as the Chilcot report states:

Finally, two other proposals made at the renewal debates last year—the threshold test and turning Queen’s evidence—are already in place.

If we cannot prosecute suspected terrorists and they are foreign nationals, we aim to deport them. The European Convention on Human Rights currently does not allow us to deport suspected terrorists back to their country of origin if there are grounds for believing that there is a real risk that they might be tortured or subjected to inhuman or degrading treatment on return. Therefore, to provide the necessary assurance as to treatment, we have agreed, and are continuing to negotiate, appropriate arrangements with other countries to protect deported individuals’ human rights.

Separately, we are also working to persuade the European Court of Human Rights to reconsider current jurisprudence on the deportation of terrorist suspects in order to ensure that the rights of the individual are appropriately balanced by the interests of national security.

Despite these advances, there remain a very small number of suspected terrorists whom we can neither prosecute nor deport. Control orders remain the best available means of dealing with these individuals. Since their introduction in 2005, control orders have been an important part of our fight against terrorism. A tailored set of obligations, such as restrictions on their finances or communications equipment, can be applied which help to prevent, restrict and disrupt individuals engaging in terrorism-related activity.

Control orders are not imposed arbitrarily. A judge must agree that they are necessary and proportionate, and they are subject to regular and rigorous review. As of today, only 11 control orders are in force and only 31 individuals have ever been subject to a control order. They are an important tool in protecting the public from the very real threat from terrorism.

Over the past year, there has been continued support for control orders from outside government. First, there was the landmark judgment by the Law Lords in October last year. Crucially, they upheld the control order system, although we were disappointed that they did not agree with the Government on every issue.

On Article 5 of the European Convention on Human Rights, the Law Lords judged that no control order then in effect needed to be weakened. Indeed, the judgment puts the Government in a stronger position than before, as the Law Lords effectively indicated that a 16-hour curfew does not breach Article 5.

On Article 6, the judgment was more complex and has been widely misreported. The Law Lords did not say that any case before them had breached the right to a fair trial. They said that in some, possibly exceptional, cases, the current provisions in the Act might breach Article 6. The Act was therefore “read down” to ensure that the procedure adopted under it would be

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compatible with Article 6 in every case. They concluded that the High Court should consider the point on a case-by-case basis. This forms part of the mandatory review of each individual control order by the High Court—one of the many safeguards in place to secure the rights of the individual. We therefore remain firmly of the view that the legislation, and the order before us today, are fully compliant with the ECHR.

Secondly, the independent reviewer of the operation of the Prevention of Terrorism Act, the noble Lord, Lord Carlile of Berriew, continues to view control orders as necessary. He states that,

Both the other statutory consultees—the Intelligence Services Commissioner and the director-general of the Security Service—share this view. I place on record my, and the Government’s, thanks to the noble Lord, Lord Carlile, for another thorough report, which I am sure will add a great deal to today’s debate. A formal reply will of course be produced in due course.

Let me be clear that control orders are not ideal. They are a last resort for those involved in facilitating or executing acts of terrorism who cannot be prosecuted or deported. However, over the past year, much hard work has gone into improving them. For example, exit strategies continue to be sought for those currently on control orders. Although I am not convinced by the suggestion of the noble Lord, Lord Carlile, that there should be an arbitrary end date for individual control orders—in part because each order addresses individual risk—I am firmly of the view that control orders should be imposed for as short a time as possible, in line with the risk posed. Exit strategies are considered as an integral part of the formal quarterly review for every control order, and an order can be renewed only if it is necessary to do so. Indeed, over the past year, we have seen two control orders revoked and another two orders not renewed. Deportation is another exit strategy. Previously, nine individuals who were at one time subject to control orders have been served with notices of intention to deport, and six of them have been deported.

To clarify a matter raised by honourable Members during the debate in the other place, there are currently five individuals who have been subject to control orders for longer than two years. Two further cases would have reached the two-year point on Saturday. However, those control orders have now lapsed, as the orders were those imposed on two of the individuals who absconded in May 2007.

The Earl of Onslow: My Lords, can the noble Lord comment on that? Has anything been heard of those who absconded? Have they done any harm? Have they done anything wrong or caused any havoc and hassle?

Lord West of Spithead: My Lords, so far as I am aware, we have no information whatever about them.

As was made clear last year, the Government continue to consider the prospects of prosecuting individuals subject to control orders for terrorism-related offences on an ongoing basis and review it formally each quarter.

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Over the past year, we have put new procedures in place and the police provide more detail to the Home Secretary on the prospects of prosecution.

As well as greater use of exit strategies, the noble Lord, Lord Carlile, also notes the difficulties of enforcing so-called light-touch control orders. We agree that these can be problematic. Since the renewal debates last year, all current control orders and the monitoring procedures that they are subject to have been reviewed to ensure that they are as effective as possible. In a number of cases, where it was necessary and proportionate to do so, the control orders were strengthened. However, we are not convinced by the use of ASBOs or civil proceedings for an injunction against specified activities—alternatives that the noble Lord, Lord Carlile, suggested.

Legislative improvements to control orders have also been worked on over the past year. The Counter-Terrorism Bill was introduced on 24 January and includes measures to improve the policing of control orders. I note the amendment to the Motion tabled by the noble Baroness, Lady Miller. I should emphasis that the Bill will also, of course, give noble Lords further opportunity to debate and to consider amendments to the control order system more generally, including the many detailed points raised in the JCHR report published last week.

In conclusion, we face a threat from terrorism which is determined, indiscriminate and brutal. We must protect the public, while ensuring that our fundamental rights and values are protected. Control orders are an important part of this delicate balancing act. They are one of a significant number of measures that can be deployed to protect the public from terrorism. The risk to the public would surely increase if we did not renew the Act. This is a prospect we cannot allow. I commend the order to the House.

Moved, That the draft order laid before the House on 30 January be approved. 9th Report from the Joint Committee on Statutory Instruments, 9th Report from the Merits Committee, 10th Report from the Joint Committee on Human Rights.—(Lord West of Spithead.)

8.11 pm

Baroness Miller of Chilthorne Domer rose to move, as an amendment to the above Motion, at end to insert “but this House regrets that Her Majesty’s Government propose to renew the provisions on control orders without offering the opportunity to amend the whole of the Prevention of Terrorism Act 2005”.

The noble Baroness said: My Lords, annually the Government are required to come before Parliament to ask that Sections 1 to 9 of the Prevention of Terrorism Act 2005 remain on the statute book. This should be far more than a rubber-stamping exercise. This debate should be undertaken to ensure that the exceptional measures, taken to deal with an exceptional threat, are continued only if necessary. The parliamentary debate should prevent a drift into acceptance of these exceptional measures because the danger is that they will become the normal default position. Sadly, the downgrading of the order in this year's business to a one-hour debate in the dinner break from last year’s

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two-hour afternoon debate shows that the Government already regard this as a rubber-stamping exercise. On these Benches we regard this as a very regrettable move; we are concerned to keep the necessity for these orders in proper review and to ensure that Parliament is given due opportunity to do so.

The Prevention of Terrorism Act should be reviewed to see which provisions should be retained, which updated in the light of experience and which dispensed with. I shall explain briefly why we on the Liberal Democrat Benches feel that we should review and substantially amend rather than simply rubber-stamp, which is really all that the Government are offering Parliament by this order. Liberal Democrats have consistently had deep concerns about two issues on these orders: first, that the standard of proof required for the imposition of an order should be raised from the Home Secretary's reasonable suspicions to a balance of probabilities; and, secondly, that non-derogating control orders should be granted through the judicial system by a judge and not through the political system by a politician. Neither of those points are mere niceties.

I believe that on all sides of the House we agree that we must take measures to minimise the threat of terrorism. However, we on these Benches, believe that the Government are making some bad mistakes in those efforts. In its 10threport, the Joint Committee on Human Rights makes the point powerfully when it says,

The same point was made very eloquently last year by the noble Lord, Lord Judd, when he said:

How right he was.

As regards prosecution, the figures in front of me vary slightly from those of the Minister. I put it to the Minister that, although the points he makes are valid, the Government are still not pursuing prosecution as strongly as they might. But I would concede that, after considerable pressure, including from these Benches, we are pleased that the Government are to include provisions for post-charge questioning in the Counter-Terrorism Bill and that they are finally accepting that there is merit in using intercept evidence, given the necessary safeguards for national security.

There are three substantial reasons that have occurred in the past year, since this House last debated this order, for the Government to amend this legislation substantially. Those reasons are: the experience of another year in how the regime works; the Law Lords’ judgments; and the fact that there is now the opportunity in the forthcoming Counter-Terrorism Bill to look at amendments.

The opportunity presented in the Counter-Terrorism Bill has been taken by the Government in some small degree. They propose to narrow the definition of

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involvement in terrorist-related activity; they propose to define the seven days allowed for representations in favour of the controlled person; and they propose to enable the anonymity of controlees to be protected from the start. However, I agree with the Joint Committee on Human Rights, which calls these minor, tidying up amendments. In fact, the Counter-Terrorism Bill as it stands fails to address the most significant defects of the control orders regime. These are brought to light by the recent House of Lords’ judgments. I hear what the Minister says about these being widely misreported, but I turn his attention to paragraphs 43 to 47 of the report of the Joint Committee on Human Rights, where it details the concerns. In light of the time available tonight I shall not list them, but I urge the Minister to look at them. Although I am no lawyer, even I can see that it cannot be right that what constitutes a fair hearing should be decided on a case-by-case basis. Surely this must be laid down in statute, together with some reference to proof and the ability to rebut such evidence.

The Law Lords' judgment should have been sufficient to persuade the Government that the statutory framework needs amending. They have the opportunity to do so with their forthcoming Bill and I urge the Minister to look at those issues again. Furthermore, the Joint Committee on Human Rights points to a measure of disagreement with how well the special advocate scheme is working. It also recommends that the Secretary of State should be required by statutory obligation to give reasons for making a control order.

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