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I turn briefly to the practical experience of what has been learnt over the past year. I would be grateful if the Minister could comment a little further on the efficacy of the orders. The point behind the orders, of course, is to prevent acts of terrorism and to prevent individuals likely to plan or incite such acts from progressing their plans. As opposition Members not privy to intelligence, it is impossible to know how successful any of the orders have been in that regard. The fact that two individuals have absconded while subject to two orders—the Minister has said tonight that he has no idea where they are or what they are doing—means that the orders are by no means completely reliable. Two out of a fairly small number is a pretty high failure rate.

Will the Minister also comment on the fact that although the Government stated in their response to my noble friend Lord Carlile’s 2007 recommendation that orders should not continue indefinitely, there is not so much evidence before us that the Government have been implementing exit strategies? The Minister gave us further figures but that criticism still stands. I would be interested to know the cost of control orders versus the cost of covert surveillance. Similarly, can the Minister comment on the efficacy of control orders versus covert surveillance, on the assumption that they are not mutually exclusive?

There is no evidence that the Government intend to further use the Counter-Terrorism Bill to amend this legislation. It is quite likely that this time next year we will be faced with rubber-stamping these orders yet again. I warn the Minister that if this is the case—we shall certainly seek strenuously to amend the forthcoming

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Bill if the Government do not bring forward their own amendments—it will be a missed opportunity and make us more vulnerable in several ways. I encourage the Minister to rethink in the mean time because we have the benefit of a couple of months before the Bill comes to the House. I beg to move.

Moved, as an amendment to the 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”.—(Baroness Miller of Chilthorne Domer.)

The Earl of Onslow: My Lords, I rise to speak because I am on the Joint Committee on Human Rights, which produced this report. The noble Baroness, Lady Stern, and I have been hunting as a couple—if that is the right word—on this. I shall be interested to hear from the Minister, because after his comments on 42 days, it crossed my mind that had he been in command at Trafalgar, he would have said, “England expects—oh I don’t mean that—England does not expect that every man shall do his duty”. Perhaps that is a little unkind. He has given us an enormous amount of amusement—to put it mildly—over that volte-face; or as the taxi driver said, “We must now do an Admiral West”, as he did a U-turn in the road.

We on the JCHR have had several uncomfortable thoughts about this process. Our 10th report has major concerns over the parliamentary—or rather lack of parliamentary—oversight of the control order regime. The present system is not human rights-compatible and we have identified amendments that must be made to the Counter-Terrorism Bill. If the House of Commons goes through the Bill, as it has been doing, missing out great chunks and producing ill-thought-out legislation, the duty will fall on your Lordships. I hope that noble Lords will stand as firm as possible on individual liberty and the human rights of the subject, which is one of the most important things that we can do.

As we are debating an order we cannot amend it, so all I can do is gloss over some of the main amendments, which I hope will be made in the new Bill. We were also disappointed that the report of the noble Lord, Lord Carlile, was not ready until extremely shortly before the Bill was published and the renewal orders came out. That was despite promises. Please can we have reports in time for people properly to take notice of them before more discussion on recommendations takes place?

We make several recommendations in the report, which are for discussion on another occasion. In light of Guzzardi v Italy and the judgment of the noble and learned Lord, Lord Brown of Eaton-under-Heywood in the JJ case, we recommend that the PTA be amended to make a maximum curfew time of 12 hours. I did not quite agree with what the Minister said on this subject. It must be possible to have a curfew time that is no longer than 12 hours. In our previous report, we made six recommendations for amendments to the control order framework. These are,

It is true that we were made very unhappy by the evidence we heard from the special advocates. It seemed almost impossible for them to do their job. It was incredibly difficult for them to discuss what they were supposed to be doing with their clients. After some stage they were not allowed to discuss the case with their client and had to represent them without talking to them. That cannot be satisfactory, especially if it is eventually found that they can be prosecuted and evidence will have to come out in court anyway. It is a most unsatisfactory arrangement.

We think that the legislation may not clearly allow the High Court to set aside a control order based on factual error or new evidence showing a substantial change in the situation since the order has been made. That must again be wrong. If there is a factual error and the chap has been made to live in his villa in Ealing and is not allowed to go out surely he should have the right to appeal if the error is found out.

To ensure priority of prosecution, control orders should be imposed only when the Secretary of State,

as it says in paragraph 67 of our report. There should be a statutory limit on how long a control order should last.

I am sure that after a bit a potential terrorist becomes spent, stale and of no use, so there is a very strong case for not allowing a controlee to be controlled for longer than two years. A very exceptional case has to be made for that.

As I said, we disagree with the noble Lord, Lord Carlile, on the fairness of the special advocate procedure, and I have given some reasons for that. The Government’s failure to improve parliamentary review is disappointing. The lack of ability for real communication between special advocates and their clients I have already mentioned. The inability of the accused to hear evidence against them I have also already mentioned, which of course would be proper if brought to trial. No controlee has ever been prosecuted. I believe that two people have gone AWOL and just vanished into thin air with no apparent damage to society, and there have only been 34 in total. The Minister said that there are 2,000 known potential terrorists out there and up to twice that figure who are unknown. Somehow, those figures do not quite add up. If there are 2,000 potential terrorists out there and 34 people who, thank goodness, have been charged and prosecuted—34 people are under control orders—I hope that we are not exaggerating the terrorist effort.

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We say that there has been this great increase in terrorism. Northern Ireland was much nastier. I quite concede that the new factor is suicide bombing, which makes a great difference. Of course we must take that very seriously, but we must look at it in proportion, given the horrors that go on around us in other societies. It is nasty, but we could be in danger of exaggerating it.

I have tried to be quite quick over this, and I have rather skimped in my précis of what we have said. The report is available and I urge people to read it, but I thought that it was important to bring the salient points to the notice of your Lordships, and I hope that I have done my duty as best I can.

8.30 pm

Baroness Stern: My Lords, I am very glad to have the opportunity to speak at this annual event. I agree very much with the noble Baroness, Lady Miller, that the time available has been cut in half, which is highly undesirable. I, too, am a member of the Joint Committee on Human Rights, and I thank our staff for their tremendous working in getting our report into the public domain for debates in the other place and here this evening. I am very grateful to the noble Earl, Lord Onslow, for introducing the report, and I was very glad to hear the Minister say that the preferred option is prosecution.

My particular concern in this matter has always been to ensure that we do not at any time forget the severity of this measure and the effect that it has on those subject to it. Those subject to it include the families and friends of those under control orders. I am very glad that that is referred to in the report of the noble Lord, Lord Carlile, where he states:

He goes on to say,

Since our first debate on renewing the order on 15 February 2006, there have been some very welcome changes and more recognition of the impact that the measure can have on the mental health of an individual and his or her family. I note that the terms of reference of the Control Order Review Group, which reviews each control order on a quarterly basis, include,

and to,

Can the Minister tell us how that is done? Presumably, someone makes a report on the individual and on the family. Who makes the report and what are that person's qualifications? As it is a report on physical and mental health, presumably it is done by a doctor; is it an independent doctor? I should be grateful if the Minister could answer that question. I also suggest that the Control Order Review Group might be assisted in its

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work if there were an express duty in statute on the Home Secretary to monitor that closely and to seek independent expert evidence about the impact on the individual and his or her family.

Clearly, this is a complicated matter and it is hard to find information on the effects of the control order regime, but I learnt from an ITN news report that Mr Bullivant, whose control order was quashed, told ITN:

Have the Government learnt anything from this case, and has it affected how they make their assessments of physical and mental health?

Also relevant to the point about the effect on the individual is the length of time of the curfew each day. The view of the Joint Committee on Human Rights is that 16 hours a day is too long. Our view is that 12 hours would be a more appropriate maximum. It is worth noting that the European Court of Human Rights in a case involving Italy has found that nine hours, when considered together with other severe restrictions, amounted to deprivation of liberty.

The Kafkaesque nature of the process may also have an effect on the mental health of the person being controlled. That person gets no reasons from the Secretary of State. If the material is closed, the controlled person may not know even the outline of the case against him or her. The special advocate cannot discuss the case with the controlled person. The JCHR believes that the Secretary of State should give reasons for the making of the control order.

We have discussed the length of the order. As I understand it, seven of the controlled people have been living like this now for two years; two of them have been under a control order for almost three years; and for the three years before that, those two were being held in Belmarsh prison. As the chairman of the Joint Committee, Andrew Dismore, pointed out:

I note that the noble Lord, Lord Carlile, recommended a maximum of two years, other than in genuinely exceptional cases. I heard the Minister say that he does not agree with the noble Lord’s proposals, but I think the Government take the view that control orders should not be indefinite. The law as it stands allows them to be indefinite, so I would be grateful if the Minister could tell the House what amendment the Government are considering to ensure that control orders cannot be indefinite.

Lord Judd: My Lords, no one anywhere should underestimate the responsibility that falls on government in this exacting area. I for one do not underestimate the very direct and heavy responsibilities that fall on my noble friend who has spoken to the order this evening. It is essential that we emphasise that point in everything that we say.

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Two things trouble me in our approach to policy in response to terrorism. The noble Baroness, Lady Miller of Chilthorne Domer, has referred to something that I said in the debate last year. I assure her and other noble Lords that I stand by every word that I said last year; I feel at least as strongly now as I did then. We must remember that those cornerstones of British justice which have been so admired throughout the world did not come lightly; they came from decades and centuries of struggle and rugged determination to make the law a civilised example.

Part of me recoils at the concept that, however frightening the terrorism with which we are confronted, we should by the presence of that danger begin to dismantle or erode what we have seen as fundamental to our system of justice. I feel that, and I am not afraid to say it. Some might accuse me of being a bit chauvinistic about it, but I feel, as a Briton who is proud to be a Briton, that we are giving the extremists a victory when we do that. I was a youngster in the Second World War, and I remember how, even as a very young boy, I was struck by how determined we were to try against all that adversity to stand by the principles of law as we then saw them. That part of me is real. The other part of my concern is that we do not inadvertently begin to act out the script that might have been written for us by bin Laden or other cold, calculating and manipulative extremists—doing the very things that they want us to do to discredit our declared commitment to justice and the principles on which our legal system works.

I miss being on the Joint Committee on Human Rights. I very much enjoyed my time on it, and I have been very impressed by the report that it has brought out again this time. The noble Earl, Lord Onslow, is absolutely right that we should all read it. If I might say so with great deference to my noble friend, it is incumbent on him and the Government to give a considered response to your Lordships to the points made in the report by the Joint Committee, which does such sterling work on our behalf.

In our approach to the response to terrorism, we must beware of counterproductivity. The Joint Committee makes that point. The Government have a human rights responsibility, as well as a political responsibility, to protect from terrorism the people within their jurisdiction. However, if by the things that they are doing they cross a line which means that they begin to provoke terrorism or drive impressionable people into the arms of extremists, they are not doing the job of protecting the British people. I have always felt that that argument is incredibly important. We must not play into the hands of the extremists.

Sometimes I catch myself saying in the evening, “But do I still believe in human rights? I am making all these points on the basis of a rather political analysis”. I passionately believe in human rights; I just happen to believe that there is a correlation between what makes hard, tough political sense and the cause of human rights. In fact, I am prepared to put forward the thesis that if you do not have a human rights problem, you will minimise the chances of extremism: if you have human rights problems, you will always increase the chances of extremism.

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The noble Baroness, Lady Miller, might have gone on to refer to some other things that I said last year, and I shall. I refer to that very important speech to the Criminal Bar Association made by the Director of Public Prosecutions in which he argued that we should hold it as an article of faith that crimes of terrorism are dealt with by criminal justice, and that in the wake of 9/11 some of the values enshrined in the European convention and in common law appear to be losing their status. Some people now seem to think that such fundamental rights as the right to a fair trial and the right to liberty can be compromised even when the life of a nation may not be entirely at stake. He argued that one of the worst manifestations of this approach has been the resort to parallel jurisdictions where standard protections, quite deliberately, are no longer available, and suspects are removed from the protections of criminal justice and are placed instead in quasi-judicial or even non-judicial fora deliberately hostile to due process.

8.45 pm

I was a member of the Joint Committee on Human Rights when the special advocates gave evidence. I shared the anxiety which has been expressed today. They were explicit. When asked, they said that they could see very little in common between what they were expected to do and all that they had previously understood to be the British system of justice. It was a simply impossible job to be expected to defend someone without being able to discuss the case in any meaningful way with their client.

My noble friend has said tonight again that the Government’s professed policy is the priority of prosecution. But the Joint Committee on Human Rights, in its report, has again underlined—to sum up its argument—that,

I believe that there are some very serious issues here.

It also seems that the noble Baroness was right to say that we must not allow ourselves to drift into a rubber-stamping process. This is a very significant evening in the life of Parliament. We are re-enacting measures which cannot be held to be consistent with the traditions of British justice, and we are doing it in a dinner break with an hour at our disposal. How can that be right? We are in a very serious predicament. I hope that my noble friend, whose responsibilities are immense and whom I greatly admire in the way in which he tackles them in so many respects—including his first, instinctive response rather than his tailored response, which may come subsequently—will deal with the gravity of the situation when he comes to reply, not in terms of the terrorist threat about which we all agree, but in terms of the gravity of the situation for the quality of British justice.

Lord Teverson: My Lords, when the Minister talked about deportation, he used the word “currently” when saying that under European human rights legislation

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we are not able to deport people to countries where they are likely to suffer pain or torture. Does he feel that that will change in some way? I cannot see how, but I was very interested that he used the word “currently”. Like other noble Lords, the key issue for me is around prosecutions. We want to see, not people under control orders, but those who are guilty of terrorist offences put away from society for a considerable period of time in prison under due process of law.

Where are the Government in terms of their decisions on intercept evidence? Perhaps I may tempt the noble Lord into giving some opinion on how necessary control orders will be if, when and, I hope, as intercept evidence is allowed. Will this current type of legislation in terms of this order become redundant?

Lord Kingsland: My Lords, we last debated this matter at considerably greater length on 5 March 2007. We acknowledge of course the gravity of the terrorist threat and share the Government’s concerns about it. We also take the view that, in circumstances in which it is impossible to prosecute or deport someone, some form of control order system will be necessary. However, control orders are instruments of Executive power and consequently pose dangers to a society based on the principles of democracy and the rule of law. Terrorism menaces those values as well; but responding to terrorism with legislation that is itself capable of undermining those values can, if it is not limited to what is absolutely essential and subject to regular review, achieve precisely the objects that the terrorists seek.

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