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Secondly, there is the question of procedures, to which the noble Lord, Lord Lester, devoted a considerable part of his speech. This matter was dealt with in some detail in the Appellate Committee’s judgment in MB. I recall the noble and learned Baroness the Attorney-General standing at the government Dispatch Box—it must have been in March—when the last statutory instrument came up for renewal, saying that it was very important to note that the legislation had not been found to be in breach of the European Convention on Human Rights. It was found not to be in breach only by a vigorous reading-in under the interpretation section of the Human Rights Act 1998. Otherwise, the Appellate Committee said in terms that the Act would have been in breach, in which case it would have had to make a declaration of incompatibility. The point is very well dealt with in paragraph 53 of the JCHR report, which states:

“The House of Lords in MB, however, recently held, by a majority of four to one, that the procedures contained in the PTA 2005 and the Rules of Court made under it would not be compatible with the right to a fair hearing to the extent that they could lead to the upholding of a control order where the essence of the case against the controlled person remained entirely undisclosed to him or her. In their opinion, the statutory regime could only be made compatible with the right to a fair hearing by using s. 3 of

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the Human Rights Act to read into the legislation additional words guaranteeing the right of the controlled person to a fair hearing”.

Surely, the Government must recognise that this is an extremely unsatisfactory situation for them to find themselves in. Simply to leave the law at that would not provide the precision necessary, nor the fairness to which every citizen of this country should be entitled. It is simply not sufficient to leave the matter to be wholly dependent upon the interpretation by the House of Lords by means of Section 3(1) of the Human Rights Act 1998. Here we are also looking to the Government to provide an amendment which, if not precisely in terms of that tabled in the Marshalled List, approximates to the intention of the amendment.

The third issue dealt with by this triumvirate of cases, including JJ and others, is the question of identifying the borderline between restriction and deprivation of liberty. I freely accept that casting an amendment to deal with that problem is less easy than in the case of the other two, because although your Lordships’ House found that 18 hours a day crossed the borderline, it is really not possible to assess the compliance of a control order unless one looks at all the circumstances of the case, of which the length of the curfew is only one. I note that Amendment No. 136 contains a figure of 12 hours; there is some merit in approaching the matter in those terms; but we on the opposition Benches are more hesitant about being specific about hours in such amendments than perhaps is the Joint Committee.

I urge the Government not simply to hold their ground on this, but to get to grips with what was decided in those cases and reformulate the various provisions in the 2005 Act to make them not only more human rights-compliant in terms of the convention and the Act itself, but more generally to be just fair, as the noble Lord, Lord Lester, said. Obviously, the Act relates to very serious circumstances involving terrorist threats to the security of the country; but, nevertheless, even those whom we suspect of terrorism deserve the protections of our constitution that are appropriate to the circumstances. We do not believe that those protections are in the Act at the moment and the approach of the Joint Committee on Human Rights is correct.

Baroness Miller of Chilthorne Domer: In supporting these amendments from our Front Bench, the Government should not think that that means we are coming round to supporting the entire regime of control orders, which we have consistently opposed, for reasons of which the Committee is well aware, which I shall not rehearse now. However, these are important amendments and, for the reasons spelt out by my noble friend Lord Lester, ably amplified by the noble Lord, Lord Kingsland, we look forward to the Minister’s response.

Lord West of Spithead: I should make it clear that our preferred option with someone whom we suspect is a terrorist is always prosecution. If we cannot get a prosecution, because all we have is intelligence rather than pure evidence, we would go for deportation with assurances. This is the next case. Control orders are there to protect our citizens and only a very small number of them have ever been enacted. I understand why the noble Lords, Lord Lester and Lord Kingsland, approached this in a general sense, but it is probably

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not the way in which I should reply to the debate. I think I will have to go through these amendments in turn because clearly different lawyers have different views. The Government’s lawyers have drawn different inferences and conclusions from—

Lord Lester of Herne Hill: Perhaps it will help the Minister if I say that I propose to move each of the amendments to give him an opportunity to reply to each of them with complete clarity.

Lord West of Spithead: I thank the noble Lord for that. I would much prefer that. I am stepping into dangerous territory here. For example, the noble Lord, Lord Lester, quoted only the dissenting judge regarding the Court of Appeal judgment and not the majority who disagreed. It is dangerous territory and I understand more and more why, when I was First Sea Lord and the Attorney-General gave the legality of war, I sought other opinion because, at times, there seem to be varying opinions within legal circles.

Lord Lester of Herne Hill: Although Lord Justice Sedley was dissenting, he was not dissenting on the point that I quoted. All members of the Court of Appeal were of the basic fairness point of view, with different nuances. We do not have to go into that now.

Lord West of Spithead: I apologise to the noble Lord if what I said was incorrect. I would love to go through them amendment by amendment. As we consider these to be very important issues, I have considerable responses to each one and it is important they go on the record.

Lord Lester of Herne Hill: However, the Minister has not yet dealt with the first amendment. Does he propose to deal with that now before we reach the others later?

Lord West of Spithead: Amendments Nos. 131 and 137 to 141 are all concerned with ensuring that a controlee has the right to a fair trial accorded to him under Article 6 of the European Convention on Human Rights. As noble Lords will be aware, this issue has been considered at length, including extensively by the courts. Indeed the House of Lords handed down a series of judgments on control orders in October 2007, one of which, MB, already referred to by the noble Lord, Lord Kingsland, dealt explicitly with the right to a fair trial.

In MB, the Law Lords did not say that any control order case before them had breached the right to a fair trial. But the majority view was that, in rare cases, the provisions in the 2005 Act might lead to a breach of Article 6. The Law Lords therefore applied Section 3 of the Human Rights Act to make the 2005 Act compatible with Article 6 in all cases. The Law Lords also concluded that the High Court should consider compatibility with Article 6 on a case-by-case basis. The cases before the Law Lords on this issue were referred back to the High Court.

As a result of the MB judgment, the 2005 Act is fully compatible with the European Convention on Human Rights. No further changes were required by the Law Lords. That sets the context for our discussion

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of these amendments. In broad terms, the Government do not think that second guessing or ignoring the Law Lords’ judgment, as this group of amendments seeks to do, is either necessary or desirable.

Lord Lester of Herne Hill: I am sorry to interrupt, but I am very anxious that we have complete clarity across the Committee. The noble Lord, Lord Kingsland, with devastating effect, raised in his speech the issue of the principle of legal certainty: a common law principle that the citizen is entitled to know what the law is and what its limits are, especially where there is an adverse impact on the right to liberty. The noble Lord, Lord Kingsland, and the Joint Committee have said that it is not good enough to rely on a reading-in of safeguards by Law Lords in their judgments. On the face of the statute, the law should be sufficiently clear so that everyone knows what the law is and what its limits are.

That is the thrust of the speech of the noble Lord, Lord Kingsland, with which I completely agree. It is a systemic problem; it is no use saying, “We do not need to make changes because the Law Lords did this, that, or the other”. The two opposition Benches are saying to the Government: “Please make sure that the statutory scheme is clear and gives effect to what the Law Lords have required as a matter of procedural fairness”.

Forgetting the detail of the amendments, surely the Minister would like to go away to think about that and see what amendments he could bring back to ensure that what the Law Lords have ruled is reflected in statute. There is an ancient English, as well as European, principle that legal certainty should be provided when there is a deprivation of liberty of the kind involved here.

5.30 pm

Lord West of Spithead: As I understand it, we are talking here about giving the person details of what he is being charged with, why he is being charged and what is the case against him. Is that what we are talking about; is that legal certainty?

Lord Lester of Herne Hill: What we are talking about—I am dealing with the whole bunch of amendments in saying what I have—is ways of writing in the necessary procedural safeguards that the Law Lords have insisted on, using Section 3 of the Human Rights Act to do so. All that I am saying is that, as a matter of principle, surely the Government should now take away the JCHR’s suggestions and the Law Lords’ judgments and come back with amendments that will not be controversial, as they will reflect the law of the land as laid down by the Law Lords.

Lord Kirkhill: Before my noble friend responds, I wonder whether the Committee agrees that fewer interventions from the noble Lord, Lord Lester of Herne Hill, might be more beneficial to the rest of us in Committee in trying to assess the Minister’s reply. We cannot get past the opening remarks from the Minister because of incessant interventions—in my view, too frequent.

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Baroness Miller of Chilthorne Domer: For the clarity of these Benches, I do not agree at all with the noble Lord’s comments, because my noble friend has just drawn from the Minister the comment, “Will the persons who will be subject to the control order be charged?”. In my understanding of control orders, people are not even charged.

Lord West of Spithead: I have just got into my opening remarks. As I said, I have a highly complex answer here and I went through it in detail before with those in the Box. I do not want to get into toing and froing because use of language is clearly extremely important, as the noble Baroness has just shown. Those people are not charged in the formal sense, although I hope that people understood what I was referring to. That highlights exactly why I have to follow very precisely what is written here. Some of these issues are fine points of law. If I may run through my preliminary remarks and then go through each amendment, at the end of that, I will be very happy to consider and debate particular points.

There is ongoing litigation about what the judgment to which I referred means in practice, but that is about practical implementation. It does not mean that further substantive changes of principle are required. Noble Lords will be aware that in last week’s Court of Appeal judgment on the right to a fair trial in a number of different cases, the majority view essentially supported the Government’s position.

Amendment No. 131 obliges the Secretary of State to give as full as possible an explanation of the reasons why the individual is reasonably suspected of involvement in terrorism-related activity and why a control order is necessary to protect the public from a risk of terrorism. Currently, a control order always explains that the Government suspect that the individual is or has been involved in terrorism-related activity, and that the control order is necessary to protect the public from a risk of terrorism. After service of a control order, the individual is provided with the open case against him. Even before the Law Lords’ judgment of October 2007, the starting point was that the open case must contain as much material as possible, subject only to legitimate public interest concerns. Special advocates can and do make submissions that further information should be disclosed to the individual.

I should add that, subject to public interest and Article 6 considerations, the court rules underlying control order proceedings require disclosure of all relevant material. That effectively goes beyond providing reasons to providing underlying material. That includes providing any material that undermines the Secretary of State’s case or assists the controlees’ case, as well as material helpful to the Secretary of State. Moreover, the duty to disclose relevant material is a continuous obligation that remains in place throughout the hearings. Thus, the individual is already given as full an explanation as possible of the reasons for the imposition of a control order. Any requirement to place as full as possible reasons in the control order is an unnecessary bureaucratic duplication, given that existing material—in particular, the open case—already fulfils that function.

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In Article 6 terms, following the MB judgment, as part of the review of each control order, the High Court must consider compatibility with Article 6. A control order hearing could therefore never conclude in a way incompatible with Article 6, including in relation to disclosure of reasons for the making of the control order.

To the extent that the amendment simply requires that existing practice continues, it is entirely nugatory. To the extent that the amendment is interpreted as requiring something beyond existing practice, it would be highly damaging to the public interest, reducing the Secretary of State’s ability to protect the public from terrorism. That is because the Secretary of State already puts in open court what she can. Anything further would require providing an explanation that would include disclosure of sensitive material against the public interest. In such cases, the Secretary of State, taking the advice of the agencies, would not agree to provide the material, and the case would have to be dropped.

Amendment No. 137 amends the 2005 Act to reflect the read down by the Law Lords in MB. Subsections (2) and (3) add in the exact words already effectively added to the Act by the MB judgment and so are redundant.

Subsection (1) was not part of the read-down by the House of Lords and is not necessary. As a result of the read-down, a judge will not be put in a position where he has to uphold a control order where the proceedings have not been compatible with Article 6. If the amendment is intended to go beyond the MB judgment, making it the court’s job to quash the order without first putting the Secretary of State to her election, the amendment would be undesirable as damaging to the public interest, not merely unnecessary.

Subsection (4) reflects the wording included within the asset-freezing provisions of the Bill in Clause 71(6). This is also unnecessary. This provision in Clause 71(6) is included in the asset-freezing clauses instead of the words of the MB read-down to give effect to the MBjudgment in legislation to which the judgment did not directly apply but which makes provision for a comparable situation. There is no need to include the wording of Clause 71(6) in the 2005 Act on top of the MB read down, which already makes the position clear for the 2005 Act. That would be unnecessary duplication.

The amendment highlights one element of the Government’s response that is common to a number of amendments in the group, and to amendments in other groupings. As noble Lords will be well aware, we operate under a common law system. It is widely accepted that public authorities—among others—are bound not just by statute, but by case law. There is therefore no need to legislate to reflect judgments handed down by the courts. Indeed—and on a related point—as noble Lords will also know, it is considered bad practice to legislate unnecessarily.

There is an additional reason why this amendment is unnecessary. It undermines the purpose of Section 3 of Human Rights Act. There would have been no need for the Government or Parliament to make provision for the courts to read-down legislation if

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the intention had been that any adverse court judgment on human rights would require legislative amendment.

As an aside, even if one were minded to legislate—which, as I have already made clear, the Government are not—it would be odd to legislate at this stage, when there is ongoing litigation on the point. The Court of Appeal cases are likely to be considered by the Lords.

Lastly, in general terms, legislating for a read-down also carries an unnecessary risk of unintended consequences, because the courts would then be required to interpret what was meant by the new legislation and operate to that. That is different from interpreting the existing Act as read down, and could lead to different outcomes. Although that outcome may not be likely in this context, it cannot be ruled out. Moreover, if it happened there would in effect be two systems in operation: one for new controlees, and one for existing controlees. The amendment is therefore not only unnecessary but potentially damaging to the public interest. It is simply wrong to suggest that legislating would automatically clarify the issue further.

Amendment No. 138 would oblige the Secretary of State to provide a gist of all material to the controlee. This would be unnecessary and potentially damaging to the public interest for reasons that are similar to our objections to Amendment No. 131. As I explained, the individual is given as much material as possible, subject only to legitimate public interest concerns. If material could not be provided, consideration must be given to whether a summary of that material can be provided. The court, not the Secretary of State, determines whether material or a summary should be withheld.

If the court considers that disclosure of material would be contrary to the public interest but that such material must in any event be disclosed in order for the controlee to have a sufficient measure of procedural protection, the Secretary of State will be put to her election. This means that the Secretary of State is given a choice whether to disclose the information or to withdraw it from the case. If the latter, the case proceeds without that material. Either way, the case continues in a manner compliant with Article 6. If the material is withdrawn from the case, the judge must consider whether it was so crucial to the Secretary of State’s case of reasonable suspicion or necessity that, in the absence of such evidence, the decision on the order is flawed and so should be quashed.

Crucially, however, the final decision on whether to use the material remains with the Secretary of State. The rules governing control order proceedings are designed to ensure that the public interest is properly safeguarded. Introducing a requirement always to provide a summary is not appropriate. It would expose sensitive material, meaning that the Secretary of State, taking the advice of the agencies, would not agree to provide the material or reasons and the case would have to be dropped, thus exposing the public to an unnecessary risk of terrorism. Thus the judgment in MB did not require the provision of a gist to be necessary in every case to provide individuals with a substantial measure of procedural justice, despite this being the controlees’ explicit submission in the Law Lords hearing.

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Although litigation on this issue is ongoing, the majority conclusion in last week’s Court of Appeal judgment was that:

“There is no principle that a hearing will be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there is, the irreducible minimum can, depending on the circumstances, be met by disclosure of as little information as was provided in AF, which is very little indeed”.

In any case, compliance with Article 6 is exclusively concerned with disclosure. The proceedings as a whole must be assessed for compliance with Article 6. For example, proceedings could be Article 6-compliant because of the contribution of the special advocates, even where disclosure has been very limited. I should add that, on a practical level, an amendment along these lines would not necessarily further clarify Article 6. It could lead to further litigation on how a gist or a summary should be defined, and whether that definition had been met in any given case.

Amendment No. 139 would make provision for special advocates to communicate with a controlee after the service of closed material without having to give notice to the Secretary of State. The current position allows the special advocate to receive written instructions from the individual after he has seen the closed material. A special advocate can also communicate with the individual after he has seen the material, provided that it is with the permission of the High Court. The special advocate must notify the Secretary of State when seeking permission, giving the Secretary of State time to object to the communication if she thinks it necessary to the public interest, although the final decision is that of the court. In a number of cases, the special advocate has obtained permission to communicate legal points and factual matters to the controlee and take instructions from the controlee on specific issues.

The Government remain of the view that this change would be inappropriate and potentially damaging to the public interest. The current position, including giving notice to the Secretary of State, is an appropriate safeguard to ensure that sensitive sources are protected and the security of the UK is not compromised. The courts cannot safely determine the potential damage to national security without having heard any representations from the Secretary of State and from the originators of the material, who may be aware of wider material considerations that are not apparent on the face of the closed case.

The problem becomes even more immediately obvious when considering circumstances in which judges new to national security matters are presiding. How would they sensibly take a decision without any advice from the owners of the material? Indeed, it would be unprecedented to have a procedure by which matters bearing on national security were to be decided in the absence of the relevant Secretary of State. No prejudice is caused by putting the Secretary of State on notice if permission is sought. The suggestion that the Secretary of State is at an advantage in seeing the questions that the special advocates wish to put to the controlled person is overstated. All that the questions will indicate is what will already be apparent to the Secretary of State; that is, areas of the closed case where the special

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advocates would be assisted by further information from the controlled person.

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