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It is worth reminding ourselves of the history of these orders. In early March 2005, when the Prevention of Terrorism Bill was being considered, those noble Lords who were involved will recall that this House was at loggerheads with another place on four or five issues, the most important of which was a sunset clause. In the end the deadlock was broken by the Home Secretary, who undertook to introduce legislation the following year which would give us ample opportunity to amend Sections 1 to 9 of the Prevention of Terrorism Act.

Not long after that debate, in July 2005, we had the awful tragedy of London Underground suicide bombings. The Government speedily drafted and introduced a new terrorism Bill, and all noble Lords around the House acknowledged that because of the importance of swiftly getting that Bill on the statute book, it was not the appropriate context in which to reconsider Sections 1 to 9 of the 2005 Act.

However, the Home Secretary gave additional reasons for not making the new Bill a vehicle for reconsideration of control orders. The first of these was the absence of the report of the noble Lord, Lord Carlile. The second was the consideration at the time by the noble Lord, Lord Carlile, of a separate issue, which was the legislative definition of terrorism and whether it should be amended. The third reason was that it was the beginning of the Government’s own departmental work on intercept evidence, seeking a way to allow such evidence to be part of the prosecution’s armoury. So the Home Secretary was moving away from the absolute commitment he had given the House in March 2005.

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The following year, when the noble and learned Baroness, Lady Scotland of Asthal, was in charge of Home Office matters in your Lordships’ House, a further reason was given for not offering the House an early opportunity to reconsider Clauses 1 to 9, and that was a series of cases that had reached the Court of Appeal but not yet the House of Lords. I refer here to what I can encapsulate as the JJ case, the E case and the MB case.

We now have the report of the noble Lord, Lord Carlile, and he has given his view on the new legislative definition of terrorism; a committee of Privy Counsellors has been set up and is guardedly optimistic about the possibilities of using intercept evidence in future prosecutions; and the House of Lords has taken a view on these three cases. In those circumstances, there is absolutely no reason whatever why when the Counter-Terrorism Bill reaches your Lordships’ House we should not have a full opportunity to consider in detail and in depth Clauses 1 to 9 of the Prevention of Terrorism Act. Indeed, I believe the Government are taking their opportunities in another place to introduce certain amendments, albeit limited, as the noble Baroness said, to make some changes.

I have been given private undertakings by the Leader of the House that we will have a full opportunity to consider all those clauses in the forthcoming Counter-Terrorism Bill, but I would be greatly indebted to the noble Lord, Lord West, if he will confirm that to your Lordships’ House when he responds to the debate.

I thought the noble Lord’s conclusions about their Lordships’ Appellate Committee’s judgments were somewhat sanguine. As far as JJ is concerned, he fastened on to the speech of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, when he hazarded that, perhaps in certain circumstances, 16 hours would not fall foul of Article 5 of the convention. That remark has to be seen, as I am sure the noble and learned Lord, Lord Brown of Eaton-under-Heywood, would wish, in context. The noble and learned Lord, Lord Bingham, said in that case that one cannot simply look at the absolute number of hours and reach a conclusion as to whether or not it breached Article 5; one had to look at all the components of the control order. So it is quite possible that 16 hours with some particularly onerous other ingredients could push the 16 hours over into a breach of Article 5. The Home Office is being extremely optimistic if it simply thinks it can put 16 hours into every single control order from now on. In any case, the noble and learned Lord, Lord Brown of Eaton-under-Heywood may not be sitting on the next House of Lords Appellate Committee case on this, so I urge caution on the noble Lord.

As far as MB is concerned, it is true that the House of Lords was not tempted by the suggestion that there should be a declaration of incompatibility with respect to Article 6; but it did say that Section 3(10) of the Prevention of Terrorism Act 2005 would be compatible with the convention only if you read into it Article 6 of the convention. That is a very substantial alteration of the position the Government asserted during the debates in your Lordships’ House. It is quite clear that the

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court will now ascribe to itself two very important powers which the Government sought energetically to deprive it of when the legislation was initially introduced.

The House of Lords says that the court, when considering whether there are grounds for a reasonable suspicion, was entitled to consider that as a matter of objective fact and that the courts should therefore look closely at the considerations that the Home Office took into account to decide whether they were reasonable. Secondly, the component parts of the control order and the extent to which they were excessively onerous was also a matter that the courts should take into account, although there they would give the Home Office a considerable margin of appreciation because the Home Office has at its disposal a great deal of intelligence information that is, for obvious reasons, not available to the court.

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I come now to the final judgment in E. I agree with a number of noble Lords who said that the most important thing is to prosecute these cases rather than to subject individuals to control orders. Here, the Joint Committee on Human Rights report is particularly powerful and convincing. This was again a matter of serious dispute in March 2007. The conclusion of the House of Lords judgment in E is that it is implicit in the scheme of the 2005 Act that it is the Secretary of State’s duty to keep the possibility of prosecution under continuing review. The House of Lords endorsed the Court of Appeal’s approach. The Court of Appeal said:

It went on to say that that duty ought to be expressed in statute.

I am not convinced by anything that I have heard in the past three years, either in the report of the noble Lord, Lord Carlile, or from the Government on the Floor of this House, that that is what is happening. The Government give a certain amount of airtime to the desirability of prosecution, but operationally they are not seeking to make that a reality. We know that, quite apart from anything else, in practical terms quite a lot of people have just absconded from control orders. It is much more difficult to abscond from prison. That is the safest place for these people who threaten our security.

I hope that the Minister will pay particular attention to those issues. It is vital that we can review all these matters when the Counter-Terrorism Bill comes to your Lordships’ House. I would like the Minister to confirm that that is what we will be able to do.

Lord West of Spithead: My Lords, I thank all noble Lords who have contributed so powerfully to this debate. I shall try to cover all the points raised. If I do not manage to do so, please come back to me, and I shall try to do so in writing.

It is an unfortunate fact of life that when explosions are not going off and we are successfully stopping attacks, the nation as a whole and people in general

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tend to forget the threat that exists. That is very British and very commendable in many ways, but, equally, recent convictions of terrorists demonstrate the magnitude and nature of the threat. The chilling brutality of some of the plots that have been unwound during the past seven months—the aspiration to use a dirty bomb, the targeting of large shopping centres, nightclubs and our transport infrastructure, and the attempted kidnap and beheading of a member of our Armed Forces—highlights the severity of the threat that the UK faces. That threat ranges from the possibility of beheading one individual to inflicting mass casualties. I take this opportunity to thank the police, Special Branch, the Security Service and ordinary private citizens for their work in thwarting these plots. I have no doubt that their professionalism and dedication, and what has been achieved even during the past seven months, have saved hundreds—I do not want to exaggerate because it is important not to exaggerate threats—and probably thousands of lives. We have to ensure that they continue to be provided with an across-the-board toolkit to counter the threat.

The Earl of Onslow: The Minister said, and I have no reason to doubt him, that large numbers of plots have been aborted. How many prosecutions have resulted per plot? There must be a plot/prosecution ratio. If hundreds of plots have been aborted, there should have been more prosecutions. I am fishing for information; I am a seeker after the truth.

Lord West of Spithead: The number of plots in the past 12 months is about 15. Those plots would have involved some of the issues that I touched on. I have no doubt that that scale of casualties would have ensued.

The noble Earl asked a precise question about Northern Ireland. I am afraid that Northern Ireland is not nastier than this. The Irish terrorists had a focus in what they were trying to do—we might not have agreed with their methods—and they were generally not trying to kill as many civilians as they could. Northern Ireland was different in its scale and nature.

I disagree with the amendment of the noble Baroness, Lady Miller of Chilthorne Domer. As noble Lords will be aware, the Counter-Terrorism Bill was introduced to Parliament on 24 January. I explained in my opening speech that the Bill, as well as proposing a number of measures to strengthen the policing of control orders, will give noble Lords extensive opportunity to debate control orders more generally and to table amendments to the Prevention of Terrorism Act. I hope that that reassures the noble Lord, Lord Kingsland, also.

I look forward to debates on the Bill, which will be valuable. What has continually come across to me is that all of us want to achieve the same thing, which is the safety of the British people. It is a question of exactly how we achieve that without removing the important freedoms that we have talked about and playing into the terrorists’ hand by destroying our way of life, which is exactly what they are trying to do.

We do not intend for control orders to become our default position. They are very much a second-best option. As I said a number of times, we wish to

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prosecute terrorists. They are criminals—I object sometimes to calling them terrorists—and they should be behind bars, which is without doubt the best place for them.

We cannot always achieve that. We are in a very strange and difficult situation—I do not think that we have been in a comparable situation in the past 10 or 20 years—where we cannot take the risk of allowing these people to achieve what they want, because the results are so devastating. They are aiming at mass casualties. When we move on to dirty bombs and CBRN—again, one must not scaremonger—it becomes even more important to move quickly, which raises all sorts of difficult issues.

Yes, we want to prosecute terrorists first and have them behind bars. If they are foreign, let us get them out of the country, which we do with assurances that we would never send someone to a country where there was a risk of torture or inhumane treatment. We obtain MOUs with the countries concerned to ensure that that would not take place. It is not the sort of thing that we would do as a nation.

I am very glad to hear of the support given by the noble Baroness for post-charge questioning and intercept as evidence. There is a long way to go on that latter proposal; nine things have to be achieved before it could happen, but it is a good move forward. Will it give us a gold or silver bullet to achieve things, however? I fear not—and as Sir John Chilcot said, it would not have that much impact on control orders. That is sad and I wish that it would, because that would be wonderful—and I go back to the point that we would rather not have them.

I believe that the Law Lords’ judgment will support us. I shall come back to that in a minute when I have answered the specific points put to me by noble Lords opposite. The CT Bill will be very much looked at.

The first thing that I should say on the Joint Committee on Human Rights is how welcome is the huge amount of very valuable work that it does. I am not saying that the Government agree with every single thing in the report, but it raises the right sort of issues that we need to look at. We will look in detail at a number of those and come back when we have done so with a response to the various points.

The Earl of Onslow: My Lords, can we have an undertaking from the Government that they will look very favourably on the recommendations for amendment to the Bill that are not yet in the Bill? Will they produce some amendments along the lines of those recommended in our report, because that would ease the passage of the Bill very considerably?

Lord West of Spithead: My Lords, can I think about that and come back to the noble Earl in writing? I am still enough of a newcomer to be wary of committing myself to something like that and being shot when I leave the Chamber, so I have to be a little careful on that sort of thing.

The noble Earl also very kindly raised the issue of U-turns, or a battle “turn together”, as I would prefer to think of it. I would rather think of it as flexibility.

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At one stage all sorts of options were being put forward, and I did not necessarily agree with all of them. Where we stand now is a much better position. We will have a chance to debate the matter in the House. I am very content with how the issue has gone.

As for the report from the noble Lord, Lord Carlile, I am very glad that we got it out before the debate. We did not achieve that last year, which was not very clever, and we got it out this time as soon as was practical. We received it on Sunday 10 February, approved it on Thursday 14 and it was laid before the House on 18 February. I take the point that it would have been better if it had been before that, even, but we did as best we could to get it out.

The noble Earl and the noble Lord, Lord Kingsland, raised the point about controlees who have absconded, saying that therefore this could not be that tight a system. One could look at that in a rather different way, because possibly those controlees have done a deportation with assurances without us having to do it. However, I am being a little bit cheeky there because we are not sure exactly where they are. It is difficult to talk about precise circumstances.

The noble Earl asked about exit strategies. We look at those every quarter and we take them very seriously; we want an opportunity to do that. From the fact that no controlees have been prosecuted, which a number of noble Lords mentioned, it could be argued that the system works and that we have stopped them being so deeply involved in what they are trying to achieve. I have to be very careful not to talk specifics, but I refer to people who are encouraging and training other people to go abroad and kill coalition forces—to kill our people who are doing their duty for this country abroad. If we can stop them doing that, slowly change their view and make them decide not to do it, that would be an achievement.

The noble Earl got a little confused on figures. There is a figure of 31, which is the total number of people ever subject to control orders; 11 is the current number and 37 was the number of people prosecuted in 2007, as I have already mentioned.

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The noble Baroness, Lady Stern, again talked about the Joint Committee on Human Rights. As I have mentioned, we will be looking at this in great detail. She made a very useful contribution and raised important points that we need to look at.

In terms of the review of mental and physical health, we take the impact of the control orders on individuals very seriously and we seek representations from them about the impact of the order. We give consideration to the unintended impacts on their families. We do not underestimate that these are difficult and serious things, but we are dealing with unpleasant and unfortunate affairs—things that are not particularly nice. In terms of the review, the individual can present their own medical evidence. We sometimes choose to obtain our own medical reports, if we are particularly worried, and they are considered by the court as part of the process. We take mental and physical health very seriously and continually check to make sure if there are any problems. I hope that answers that particular case.

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We were disappointed with the High Court decision on Ceri Bullivant. The court accepted that the decision to make a control order was justified. I welcome that Mr Justice Collins said that the Secretary of State’s decision to make a control order was justified and that there were reasonable grounds for the relevant suspicion.

I will turn to the point about the 16 hours in a moment.

Whenever closed material is involved, the special advocate system ensures that the interests of the appellant are fairly represented without compromising sources. It is important that we do not compromise those sources. The system was supported by the House of Lords judgment.

My noble friend Lord Judd rightly gave a clear exposition about how important it is that we balance our rights and our freedoms—all the things we hold dear within the nation—with the ability to ensure security. I could not disagree with what he said, but actually we have to look after that right of our individuals which is their lives. Therefore, I believe that these things are balanced and appropriate. The danger of being counterproductive is absolutely right. If one looks at our counterterror strategy—which is being refreshed at the moment; I have put in a lot of work on that and it should be finished later this year—one of the key strands is known as the prevent strategy. One of the things we are looking at is exactly this balance of making sure that we are looking after our people and not making things much worse.

There is no doubt that the rights of our people are absolutely paramount. Our liberty and such things are so important to us, but we have to weigh all these things up, and we need this quiver of options to enable us to do what we believe is absolutely required.

The noble Lord, Lord Teverson, raised the DWA issue. I hope that I have covered that. We would never send people to a country on that sort of base. I have touched on the issue of Sir John Chilcot. I do not think—I am sad to say—that this will be a silver bullet; it just will not be. We are working to persuade the European Court of Human Rights to reconsider current jurisprudence. We are negotiating deportation assurances with a number of countries. We want to make sure that we get those assurances because we would not deport unless we absolutely had them.

I am most impressed with the noble Lord, Lord Kingsland. As a watch-keeping officer he has done most of the afternoon—both dog-watches—and he is now well into the first watch. That is a very long time to stay on deck. Of course, as ever, he eloquently expressed the point a number of noble Lords have made about this crucial balance between our freedoms and imposing these things.

I touched on the importance of the forthcoming CT Bill, and I hope I have given assurances on that. We will be able to discuss all those points. One of the things that frightens me in the Chamber is that I am always surrounded by judges and people who know all these things. If I paraphrase what the noble Lord said about the House of Lords judgment, it is open to interpretation; I use that word because that is what naval lawyers always used to say to me when I was

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trying to come to some difficult conclusion. We may have interpreted it slightly differently from the way he has. As noble Lords would imagine, I think that the way we have interpreted it is absolutely right.

The noble Lord also referred to absconding, which I touched on—I hope that I covered it—and the fact that we have not prosecuted anyone. As I say, perhaps that shows that the measure has been useful. I have great respect for the Security Service—this covers a point made by the noble Baroness—which assesses that these people are involved in terrorism-related activity and pose a risk to public safety. Without a control order they would be free to continue their activities. The Security Service believes that control orders help to prevent, restrict and disrupt individuals engaging in terrorism-related activity. What is the difference between that and normal surveillance? That is a difficult question and I cannot go into detail on that. However, the Security Service believes that these measures are valuable and important and I take it at its word. So often I find that I am asked questions here that I have asked. That reassures me although I do not know whether it reassures noble Lords. I have asked these questions. They are important and they are being looked at.

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