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I emphasise that if the court grants permission, the special advocate’s subsequent communication with the controlee remains confidential. There is no foundation to the claim that the Secretary of State might gain an advantage if a question was asked and no information was received in response and this was subsequently deployed in the proceedings. The courts have already it made clear that they will not draw a negative inference from a controlee’s silence.

5.45 pm

As with all the other amendments proposed by the JCHR, Amendment No. 139 was not a requirement of the Law Lords’ judgment in MB. Nor was it a requirement of last week’s Court of Appeal judgment, despite explicit argument to this effect. The majority view was that,

Secretary of State—

Secretary of State—

Lastly, the court is required by control-order proceeding rules to ensure that information is not disclosed contrary to the public interest. If it authorised a communication that was damaging, it would be in breach of the rules. The court could in practice be unwilling to permit such communications without the Secretary of State first having had the opportunity to make representations to ensure that it did not disclose material that it would be contrary to the public interest to disclose.

Amendment No. 140 would provide that in control order hearings, the controlee is,

The whole purpose of the MB hearing was to decide whether the procedural protections in the Prevention of Terrorism Act 2005 were sufficient. As a result of the Law Lords’ judgment in MB, the 2005 Act is fully compatible with convention rights. The procedural protections in the Act, as read down by MB, are thus by definition commensurate with the gravity of the potential consequences to the controlee of the order.

The argument made by the controlees during the Law Lords hearing—that a control order was in effect a criminal charge and so commensurate criminal protections should apply—was explicitly rejected by the Law Lords. Moreover, as I have already made clear, the Government already disclose to the controlee all the material that they can. The amendment was not a requirement of the MB judgment, and is unnecessary and potentially damaging to the public interest.

Amendment No. 141 would make provision for special advocates to call expert witnesses. This is not a matter for primary legislation. Any amendment would more appropriately be to control-order proceeding rules. Regardless of that, the amendment was not a

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requirement of the judgment in MB. It is unnecessary not only for that reason but because in principle it is already open to those at hearings, including special advocates, to apply to the court to call expert witnesses. However, the Government are minded to ask the relevant bodies making rules of court to amend the control-order proceeding rules in due course to make it explicit that special advocates can cross-examine witnesses and adduce evidence. This would bring this element of the rules into line with the SIAC rules, which have already been amended in this way.

That said, there would still be significant practical difficulties to overcome in special advocates questioning an expert specifically on closed material. Either the expert would need to have developed vetting security clearance—an expensive and time-consuming process that would also broaden the closed environment and thus make it harder to obtain consent to use the closed material—or the questions would need to be in open but posed after the notification of the Secretary of State. More generally, it is hard to see who the expert witnesses in closed material would be and what value they could add to the proceedings. That is why the Security Service provides training to special advocates to enable them to understand and analyse the closed evidence that is disclosed to them and thus to make arguments of the kind that would ordinarily be assisted by expert witnesses. Moreover, during hearings, both the special advocate and the judge always have an opportunity to cross-examine a Security Service officer extensively. These ensure that in this regard, too, the controlee always receives the substantial measure of procedural justice to which they are entitled.

In conclusion, the Government do not agree with Amendments Nos. 131 and 137 to 141. At best, they would be unnecessary; at worst, they would be damaging to the public interest. None of them was required by the highest court in the land, even though some of the points were explicitly argued for in front of the Law Lords.

Lord Lester of Herne Hill: I am very grateful to the Minister and thank him for a full speech on all the amendments. It was much fuller than my opening speech, which, I am afraid, taxed the patience of at least one member of the Committee. They will have to bear just a few moments more of me before I sit down.

The Joint Committee on Human Rights will need to carefully consider everything the Minister has said before deciding what to recommend to the House on Report. It is not normally appreciated that the Joint Committee gives both Houses independent legal advice on compatibility with the European Convention on Human Rights that is not available to Parliament in any other way. We hope, therefore, to do a proper job in responding to the Minister’s full account.

I agree with the Minister’s summary of the majority decision of the Court of Appeal. What needs to be added, however, is that that court gave a postscript in paragraph 105 of the judgment, in which it said:

“This court rarely gives permission to appeal to the House of Lords. However, the approach to be adopted to hearings under Section 3(10) where the SSHD seeks to avoid open disclosure of relevant material to a controlee under a non-derogating control order, is a matter of general public importance. While we have tried to interpret the views of the majority in NB and AF there is

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undoubted scope for argument on the question whether our interpretation is correct. While we will consider submissions to the contrary, we have concluded that it would be in the public interest to give permission to appeal to the House of Lords in AE, AF and AN on all Article 6 related issues but not otherwise”.

I remind the Minister of that because it is perfectly clear that, whatever view the Home Office and Ministers may take of the complex legal position, even the majority in the Court of Appeal reached their decision with sufficient hesitation to invite the House of Lords to reconsider the whole of this.

Although one could say “Let’s wait and see” and, no doubt, have yet another Bill once all that has been decided, I agree with the noble Lord, Lord Kingsland, that it would be very sensible for the Government to write into this Bill whatever procedural safeguards flow from the various decisions of the House of Lords, in the interests of reasonable legal certainty.

I thank the noble Lord, Lord Kingsland, for his wholly brilliant speech, in which he made the points that I sought to make much better than I have done.

The Minister’s response included the extraordinary suggestion that the approach put forward by the opposition parties and the Joint Committee on Human Rights was somehow incompatible with Section 3 of the Human Rights Act, which requires judges to read in safeguards where it is possible to do so to save a statute from being held to be incompatible with the European Convention on Human Rights.

I think that I can say that I am one of the architects of the Human Rights Act. It is wholly wrong to think that, once the judges have done their interpretative job under Section 3, that is the end of the matter for Parliament. On the contrary, once the judges have done their job of reading in safeguards, it is the job of government and Parliament to see whether what the courts have done can be properly translated into statutory form for the benefit of users of the legal system.

I very much hope that that particular heresy will not be repeated. We are concerned that the three branches of government—the judiciary, the executive and the legislature—should act in co-operation, in the sense that each has its own function but all strive to secure compatibility with our basic rights and freedoms. It is very important, however, that the Government should not, once the judges have read in safeguards, say that the matter is ended and that they will not consent to Parliament putting the legislation into proper form. That is my bad summary of one of the points that the noble Lord, Lord Kingsland, made.

Having said all that, we will carefully consider the Minister’s speech and respond as soon as possible. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 132:

132: After Clause 88, insert the following new Clause—

“Control orders: pre-conditions

In paragraph (b) of section 2(1) of the Prevention of Terrorism Act 2005 (c. 2), at the end insert “; and

(c) unless section 3(1)(b) below applies, the DPP has certified that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence.””

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The noble Lord said: Perhaps this amendment has been fully spoken to, but I shall move it so that the Minister can respond if he needs to. I beg to move.

Lord West of Spithead: I thank the noble Lord for his comments. Certainly I do not want to commit any heresies; I will talk to my team about that. During this debate I have learnt a great deal about areas of legal process that I did not think I would ever have to know about. I reinforce that we take the JCHR very seriously. I do not want anything to create the feeling that we do not. I know that there are very deep feelings about this.

I have another very long speech on these amendments, which I am very happy to make. I could let noble Lords see the response so that they can consider it in terms of the JCHR, but I am very happy to make the speech, as I insisted with my Box that I had very detailed reasons for not accepting the amendments. I will take noble Lords’ views on this.

Lord Kingsland: I congratulate the Minister on his astonishing legislative stamina. I had thought that we had heard all the components of the various speeches he had prepared in response to a number of amendments. I, for one, would be perfectly happy to read the rest in written form rather than listen to the noble Lord—not that he does not have a sonorous mode of delivery.

I wholly endorse what the noble Lord, Lord Lester, said about the context in which these amendments have been tabled. In dealing with each amendment, the Minister mentioned on many occasions that they were against the public interest. I do not think that the Joint Committee would ever have tabled an amendment unless it thought it was in the public interest. I would not want the Minister to think that the committee was thinking of anything other than the public good.

I share the astonishment of the noble Lord, Lord Lester, that every amendment should have been given the same heave-ho, if I may use a nautical term. I myself think that some are better than others, but I think that two or three are essential for the statute book. The Minister can be in no doubt that, once we have read the rest of his speech and considered what to do before Report, we will come back to these issues.

Lord Lester of Herne Hill: I am about to say something extremely unpopular, but I think that I need to say it. It would be better if the Minister gave his speech, for the reason that we are not a club—well, not only a club—and it is quite important for it to go on the record so that those who cannot be here have the benefit of looking at it. I am sorry that I have to say that, but, since the Minister and his officials have taken the trouble to produce full answers, it is better that we hear them.

Among the choice of evils, I am in favour of the control order regime. I fully understand, as I think does the Committee, the problems about closed hearings, public interest immunity, the need for secrecy and the special advocate procedure. We are not just taking an irresponsible position, which I know the Minister appreciates. However, I should be grateful if he would respond. Obviously, any Member of the Committee is free to leave during his response, but I will listen with great interest.

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6 pm

Baroness Miller of Chilthorne Domer: Although it may be wearying for the Committee, for those who are not experts or lawyers, interventions during the Minister’s long and complex reply, which may be hard to take on board, are sometimes very helpful. This is Committee stage, so I hope that Members of the Committee, with their particular expertise, will not feel constrained from elucidating certain points.

Lord West of Spithead: I thank the noble Lord, Lord Lester, for making those points. I am glad that he supports control orders, which I have to say are nowhere near a preferred option. The Government would be much happier if there was another way. I am probably paraphrasing when I say that it is the best of a bad job. It is not the option that one would like to use, but it is necessary for public safety. I also take the point about having something in the Bill to take into account an agreed view on some of these serious and major issues of law. If we look at that, perhaps it can be taken account of beyond here.

Having asked my team to look at each amendment and to say why they felt that it was wrong, they have worked hard to do that. I have already said that our preferred approach is prosecution, but there are a number of robust safeguards. First, there is consideration of the prospects for prosecution before a control order is imposed. Under Section 8(2) of the 2005 Act, the Secretary of State must consult the police regarding the prospects of prosecution for a terrorism-related offence before making or applying for permission to make a control order. In turn, under Section 8(5) of the Act, the police must then consult the Crown Prosecution Service.

I emphasise that this consultation process already goes beyond what is expected in many investigations where the police decide whether or when it is necessary to consult the CPS. The position is set out in a letter from the police to the Home Office. It is laid before the High Court as part of the court’s review of each order. The letter explains the conclusion that the police, in consultation with the relevant prosecuting authority, have reached and how it was arrived at. This information is available to the controlee.

The second key safeguard concerns the ongoing consideration of prosecution. Under subsections (4) and (5) of Section 8 of the 2005 Act, the duty of keeping the prospects of prosecution under review is on the chief officer of the police force, who must consult the CPS as appropriate.

The third key safeguard is fulfilled by the control order review group. This group, consisting of law enforcement and intelligence agencies and the Home Office, formally reviews the prospects of prosecution of controlees on a quarterly basis. Closed and open records of this consideration are laid before the High Court as part of the court’s review of each control order.

The fourth key safeguard is the judicial review of each control order. If the public interest was demonstrably better served by prosecution of an individual, the order would be extremely likely to fail the test of necessity and so would be quashed by the High Court. This was reflected in the court judgments in the case of E, where the High Court concluded that it should

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quash a control order because the prospects of prosecution had not been kept properly under review, meaning that the test of necessity was not met. This was overturned by the Court of Appeal, but on the basis that in this case the failings in relation to review would not have made a practical difference—that is, in reality prosecution was still not possible—rather than because such a remedy was necessarily inappropriate if the failure would have made a difference.

Those four key safeguards have been subject to extensive scrutiny by the courts. The current legislative provision and procedures have been accepted by the courts as adequate, including by the House of Lords in the E judgment, and ensure that, wherever possible, individuals who are or may become subject to control orders are prosecuted for terrorism-related offences. No changes to the legislation were required by the House of Lords.

The absence of prosecutions of controlled individuals for terrorism-related offences, other than breaches of their control order, is not an indication that the current provisions have not been applied diligently. Rather, it demonstrates that at the time the control order was made there was, and continued to be, no realistic prospect of prosecution. Moreover, since control orders are designed to prevent, restrict or disrupt individuals’ involvement in terrorism-related activity, it also arguably indicates that the control order against them has been successful in disrupting their terrorism-related activity. Certainly, that assessment is made by the agencies.

Amendment No. 132 proposes that non-urgent control orders could be imposed only if the DPP has certified that there is no reasonable prospect of successful prosecution. First, I want to query the basis on which the amendment is proposed. Successful conviction and imprisonment offers the best outcome for the protection of the public. For that reason, the strong preference of the Government, law enforcement agencies and the Crown Prosecution Service is to prosecute suspected terrorists. This amendment rather supposes that the opposite is the case, and that the Government and law enforcement agencies would rather put suspected terrorists on control orders than prosecute them. There is no basis for that assumption: indeed, more than that, it is counterintuitive. That in itself should lead Members of the Committee to question the necessity of this amendment.

There are a number of reasons why the Government oppose this amendment. The Law Lords scrutinised this matter at length and concluded that no changes to Section 8 of the Prevention of Terrorism Act were required. Indeed, they considered that there were “strong practical reasons” for the current approach and that changes would have the,

As I explained earlier, the Secretary of State is already statutorily obliged to consult the police on the prospects of prosecution before an order is made or applied for. The police are obliged to consult the CPS, even where it is clear to them that there is not sufficient evidence to prosecute. However, this consultation, still less its results, is rightly not a condition precedent of

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making an order. There are good reasons for this. Providing certification by the DPP, as the amendment proposes, may not be practicable before the making of an order.

Amendment No. 132 makes an exception for urgent control orders to try to address the urgency point. None the less, it is not appropriate to include certification on the prospects of prosecution as a condition precedent. There are principled and practical reasons for this, in addition to the issue of urgency. First, the amendment would undermine the constitutional position. It would effectively give the Director of Public Prosecutions a veto over the Secretary of State’s decision to impose a control order. This clearly is inappropriate, as such decisions are properly a national security matter.

Secondly, it could damage other investigations, other prosecutions, or otherwise damage the public interest. For example, in rare circumstances the CPS may decide that a prosecution is not in the public interest, even if evidence is available that may be sufficient to prosecute; for example, a prosecution could bring into the public domain a valuable intelligence gathering technique, reducing its future efficacy. Another example might be that prosecution of a particular individual for a particular offence could damage a more complex, ongoing investigation of that individual and a wider group of individuals. If that individual is already aware of the law enforcement agencies’ interest in him, imposing a control order would not alert him to the wider investigation, and that information could be protected in control order proceedings. But a prosecution for a particular offence could well alert him and the wider group to the ongoing wider investigation. The information could not be protected as in control order proceedings as it would probably form the evidence on which he was charged. This is not an issue limited to control orders or terrorism. In every case that goes to the CPS, even if the CPS concludes that the evidential threshold is met, it must separately assess whether a prosecution is in the public interest. This amendment covers only the first element.

Thirdly, it could leave a public protection gap. A control order may be necessary to protect the public from a risk of terrorism posed by an individual even though prosecution of that individual is possible. For example, an individual may be on bail pending trial for a relatively minor offence and so the risk posed by the individual is much greater than the bail conditions a judge would lawfully be able to impose on the individual. In those circumstances a control order might be required in the interim to manage that risk.

Fourthly, it would be resource intensive, does not take account of operational realities and would likely have the presumably unintended effect of reducing the initial judicial scrutiny of control orders. Providing an answer to whether an individual can be prosecuted is a much longer and more complex task than simply beginning the process by consulting on the prospects of prosecution. Consequently, the amendment might well force the Government to use the urgency procedure more, in circumstances where the national security case meant that a certificate could not be waited for any longer. This would mean

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that the normal requirement for the Secretary of State to seek permission to make the control order from the High Court would not apply.

Fifthly, and on a point of detail, specifying the DPP personally rather than the relevant prosecuting authority is inappropriate. It is unusual to do so, places an unnecessary resource burden on that post and creates an unnecessary potential bottleneck.

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