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Amendment No. 133 deals with the ongoing review of the prospects for prosecution. This amendment contains a combination of inappropriate and unnecessary elements. Proposed new subsection (6A)(a) provides that the Secretary of State should ensure that the prospects for prosecution are reviewed every quarter. This is inappropriate. It is important that we do not undermine the independent role of the CPS and the police. The CPS, not the Secretary of State, is responsible for considering whether a person should be charged with a criminal offence. Any shift in this responsibility could undermine its role. The Act reflects this constitutional position. Nor would it make organisational sense to require the Secretary of State to “ensure” the actions of a department not under her supervision or control—the CPS is independent of the Secretary of State. Under Section 8(4) and (5) of the 2005 Act there is already a statutory obligation on the chief officer of police to keep the possibility of prosecution under review throughout the period the control order is in force and to consult the CPS as appropriate.

Proposed new subsection (6A)(a) is unnecessary, as are proposed new paragraphs (b) and (c). The statutory obligations of the Act, combined with court judgments, already deliver the intention behind the amendment. The courts have confirmed that the Secretary of State must periodically consult the police on the prospects of prosecution and do what she can to ensure that the police’s consideration is meaningful by providing any relevant information available to her to the police. This was described by the Court of Appeal as,

This, though, is not the same as a duty on the Secretary of State to ensure that the prospects of prosecution are kept under review.

As I made clear in relation to the previous group of amendments on the right to a fair trial, we operate under a common-law system and 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 on these latter points. Indeed, it is considered bad practice to legislate unnecessarily. Moreover, the Home Office formally checks the position in relation to prosecution at the quarterly CORG meetings. Amendment No. 133 is therefore neither necessary nor desirable. The courts, including the House of Lords, have considered this point at length. They confirmed the extent of the Secretary of State’s responsibilities on this matter and that no changes to this section of the Act were required.

Amendment No. 134 proposes that if there are no realistic prospects for prosecution of a controlee, the chief officer of police must provide reasons for this view both to the Secretary of State and, so far as is not contrary to the public interest, to the controlee. Neither

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of these proposals is appropriate or necessary. As I stated earlier, the Secretary of State is already statutorily obliged to consult the police on the prospects of prosecution, and the police are in turn obliged to consult the CPS. The police write a letter to the Home Office setting out the prospects for prosecution and explaining how decisions as to prosecution were arrived at.

Following recommendations from the independent reviewer of counterterrorism legislation, the noble Lord, Lord Carlile of Berriew, the police and the CPS have reviewed the content of the letters sent to the Home Office by the police. The letters now include more detail than previously, but it would not be appropriate to go any further. There is no need to undermine the constitutional independence of the CPS and the police by requiring them to include further justification in the material sent to the Secretary of State. The CPS is an independent legal body. It is not appropriate for the advice given to be scrutinised or second-guessed by others, including the Secretary of State, because the decision whether to prosecute or not is an independent prosecutorial decision for the CPS. Nor is it necessary; what the High Court and indeed the Secretary of State and the individual need to know is that the prospect of prosecution has been considered.

The letter is laid before the High Court as part of its review of the control order, and is thus available to the controlee as part of the court proceedings. Providing any further information on the reasons for not proceeding with the prosecution of a particular individual to that individual may well be against the public interest in all circumstances, rendering this element of the proposal nugatory. It would risk prejudicing future prosecutions because it would reveal the evidential gaps in the investigation to the controlee and could give that person an opportunity to frustrate the investigation so that no prosecution ensues. It would be inappropriate to disclose to the controlee advice given by the CPS to the police in these circumstances, and it may risk breaching current law if some of the information is based on intercept. It would also be highly unusual. In control order cases where there is ongoing review of the prospects of prosecution, it is perhaps slightly contradictory to require the giving of “definitive” reasons to the controlee as to why he has not been prosecuted. Lastly, again, the House of Lords judgment in E did not require any changes to this section.

In short, robust safeguards are already in place to ensure that the prospects of prosecution for current or prospective controlees are kept under regular, rigorous review, with appropriate consultation. The reasons for each decision are laid before the court and are available to the controlled individual. Amendments Nos. 132 to 134 are therefore either unnecessary, as the proposals are already in place, or damaging, as they would undermine the independent role of the police and the CPS. None of the amendments is required by the House of Lords judgment in E. For these reasons, the Government are firmly against these amendments and I hope that the noble Lord will not press them.



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6.15 pm

Lord Lester of Herne Hill: Along, I am sure, with the rest of the Committee, I am extremely grateful to the noble Lord for that extraordinarily full and interesting explanation. I learnt a great deal and I am sure that the whole of his speech will need to be carefully considered. I thank the Minister and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 133 to 135 not moved.]

Lord Lester of Herne Hill moved Amendment No. 136:

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

“Control orders: maximum limit on daily curfews

After subsection (5) of section 1 of the Prevention of Terrorism Act 2005 (c. 2) insert—

“(5A) The duration of any prohibition or restriction on the controlled person’s movements shall not exceed 12 hours in any 24 hour period.””

The noble Lord said: I wish to give the Minister an opportunity to add to his comments if he wishes to do so. I beg to move.

Lord West of Spithead: Amendment No. 136 poses a distinct threat to the ability of the Government to protect the public from terrorism. It seeks to impose a maximum 12-hour limit on a curfew that can be included in a control order. It is argued that this will make it less likely that control orders will be found to be in breach of Article 5. But the position in terms of the length of curfew that would be in breach of Article 5 is now clear following the House of Lords consideration of the issue. By a 3:2 majority, an 18-hour curfew was found to be in breach of Article 5. From our point of view, this was a disappointing outcome in terms of public protection. However, one Law Lord who found against 18 hours did provide helpful clarity on where the boundary actually lies. He explicitly said,

While I know that the Joint Committee regards this as a “slender legal basis” for imposing 16-hour curfews, the Government do not agree that that is a fair representation of the position, given that as two other judges believed that 18-hour curfews did not deprive individuals of their liberty, effectively three Law Lords gave clear support to 16 hours.

In addition, their Lordships unanimously agreed that a 14-hour curfew did not represent a deprivation of liberty. The suggestion that a 12-hour curfew is the maximum that can be imposed without depriving an individual of his liberty is therefore not credible. It is inconsistent for noble Lords to argue the importance of judicial oversight but then to ignore the courts, and in this case the highest court of the land, where the judgment of the courts does not accord with their own view.

What is clear is that the approach taken by the courts to interpreting deprivation of liberty is case-specific and carefully nuanced. In last week’s Court of Appeal judgment on various control order matters, a 16-hour curfew was upheld. However, there has also been a case where a 16-hour curfew was not upheld in the

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High Court in the context of the circumstances of that individual. The Government are appealing that decision.

The concerns I outlined in addressing other amendments relating to the dangers of legislating with regard to what is meant by a deprivation of liberty are potentially relevant in relation to this amendment, too. The JCHR also suggests that the Government need to provide evidence of the significant damage done to the public’s protection against terrorism while shorter curfews were in place. That is unrealistic. In any event, it is not the right way of looking at the issue. The key is the degree of protection that the curfew provides. In some cases, a curfew of 12 hours or less is sufficient to meet the risk posed by the individual. That is reflected in the orders currently in place and in the most recent report of the noble Lord, Lord Carlile, on the operation of the 2005 Act. But in others a 12-hour curfew will not provide the necessary assurance. That is why we have in place a number of curfews set at 14 and 16 hours. These take account of the national security case against each individual concerned and the behaviour that the curfew is seeking to restrict. In short, the obligations imposed are rightly tailored to meet the risk posed by the individual. To restrict the ability of the Government to tailor obligations to the risk posed by individuals within the clear framework now established by our courts would certainly not be in the interests of security.

On a common-sense level, it is clear that a 12-hour curfew is not as effective as a 16-hour curfew against someone who is, for example, trying to make a certain communication. Control orders are designed to help manage the risk posed by suspected terrorists but, as the Committee is well aware, they cannot eliminate that risk entirely.

Lord Lester of Herne Hill: I am grateful to the Minister. I should like to say how helpful these answers are and what a good process this is. I cannot imagine any other legislative body in the world where this process would be carried out in this way. As I listen to the Minister praising and relying upon the approach of the courts to these problems, I look forward to his speeches and those of the Home Secretary in which they rebuke the red-top newspapers for constantly attacking both the Human Rights Act and the judiciary when we should be grateful to the judiciary for the careful way in which it has interpreted and applied the law. All of the points that have been made will be carefully considered. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 137:

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

“Control orders: right to a fair hearing

(1) At the end of subsection (13) of section 3 of the Prevention of Terrorism Act 2005 (c. 2) insert “except where to do so would be incompatible with the right of the controlled person to a fair hearing”.

(2) At the end of paragraph 4(2)(a) of the Schedule to the Prevention of Terrorism Act 2005 insert “except where to do so would be incompatible with the right of the controlled person to a fair hearing”.



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(3) At the end of paragraph 4(3)(d) of the Schedule to the Prevention of Terrorism Act 2005 insert “except where to do so would be incompatible with the right of the controlled person to a fair hearing”.

(4) After paragraph 4(5) of the Schedule to the Prevention of Terrorism Act 2005 insert—

“(6) Nothing in this paragraph, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with the right to a fair hearing in Article 6 of the European Convention on Human Rights.””

The noble Lord said: I do not think the Minister has addressed this amendment specifically. He may wish to do so. I beg to move.

Lord West of Spithead: I think I addressed Amendment No. 137 when I spoke to Amendments Nos. 138, 139, 140 and 141.

Lord Lester of Herne Hill: The amendment has been addressed?

Lord West of Spithead: Yes.

Lord Lester of Herne Hill: In which case, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 138 to 141 not moved.]

Lord Lester of Herne Hill moved Amendment No. 142:

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

“Control orders: maximum duration

After section 3 of the Prevention of Terrorism Act 2005 (c. 2) insert—

“3A Duration of non-derogating control orders

A non-derogating control order ceases to have effect at the end of the period of two years from the date on which it was made, unless there are exceptional circumstances justifying its renewal.””

The noble Lord said: I beg to move.

Lord West of Spithead: Amendment No. 142 proposes that no control order should be allowed to last for more than two years other than in exceptional circumstances. This was a recommendation originally made by the noble Lord, Lord Carlile. I appreciate the broad concern behind the amendment that control orders may be applied indefinitely. Clearly that is not something that one wants and is unfounded

My first point in responding is that the Government agree that control orders should be imposed for as short a time as possible commensurate with the risk posed by each individual. There are a number of safeguards in place. First, the legislation requires that every control order renewed by the Home Secretary must remain necessary to protect the public from terrorism, and its obligations must be necessary for purposes connected with the preventing or restricting of involvement in terrorism-related activity.

Secondly, the decision to renew a control order can be appealed by the controlee and the High Court must agree that these tests have been met. This is in addition to the automatic review of the original order. Each control order is therefore subject to extensive, rigorous judicial scrutiny. As the Committee will know, the courts are not afraid to quash control orders. It is a good thing that they are not.



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Thirdly, all control orders are subject to regular and rigorous internal assessment, including formal review every quarter by the control order review group. Consideration of exit strategies is an integral part of these quarterly reviews. These safeguards ensure that control orders remain in place only where it is necessary and proportionate to do so. The test of necessity is already a high hurdle for the renewal of an order and is a test that is well understood and rigorously applied. I hope the Committee will indulge me in repeating that point: a control order can be renewed only where it is necessary to do so. At any appeal against renewal of the control order by the controlee, the High Court will consider this issue. This provides sufficient protection to an individual on its own. A new provision that includes a test of exceptional circumstances does not add any value to the existing test and, in any case, would lead to greater legal uncertainty as there would be litigation over its meaning.

The second broad point relates to the practical position, which is that the Government continue to work hard to identify exit strategies for every control order case. This consideration of exit strategies is not only a theoretical exercise. As we have made clear, exit strategies have been implemented for a number of individuals subject to control orders. In nine cases a control order was no longer necessary as it was possible to instigate deportation proceedings because of the development of a Memorandum of Understanding with the relevant country. For four individuals, the control order was revoked. In these cases the decision was taken because the necessity test could no longer be satisfied. This does not mean that there was no justification for making the order in the first place but acknowledges that the passage of time and the impact of obligations in the order on an individual may alter the position. For similar reasons, two further cases were not renewed.

Since the control order legislation came into effect just over three years ago, only 38 individuals have ever been subject to control orders and there are currently 16 in force. Of those currently subject to a control order, one has been subject to an order for less than six months and another seven have not yet reached the 12-month point. At the other end of the spectrum, one individual has been subject to an order since the legislation took effect—just over three years.

The third broad point relates to the national security implications of the amendment. While we think it right and proper that the case for renewing a control order should be looked at very carefully and be subject to judicial scrutiny as necessary, we do not accept that there should be an assumed arbitrary end date for each control order. In some cases a period of less than two years on a control order will be sufficient to mitigate the risk posed, but experience to date suggests that in other cases the arguments remain sufficiently compelling at the two-year point, and even the three-year point, to require renewal in the interests of protecting the public. That is our primary concern. The application of an exceptional-circumstances rule would not be helpful in this context.

Indeed, we need to be careful about assuming that individuals no longer pose a threat after a defined and relatively short period. Each order addresses individual

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risk. If it is necessary and proportionate to extend a control order beyond two years to protect the public from terrorism, it is the Government’s responsibility to do so. A definite end date to every control order would also mean that the individuals subject to them could simply disengage from involvement in terrorism-related activity on the basis that they know they could re-engage at the end of that period. The near certainty of a two-year limitation would encourage such behaviour in a way that the current provisions do not.

While I understand the concerns that have been expressed—and, indeed, to an extent, share them—I cannot agree with the amendment.

Lord Lester of Herne Hill: This is the last of the amendments that have been tabled and moved on behalf of the Joint Committee on Human Rights. I thank the Minister for his answer. More than that, I thank him and his advisers for the outstanding care that has been taken to respond to the points raised by the Joint Committee on Human Rights. To return the compliment, I am sure that the committee will review what the Minister has said in response to this and the other amendments with the same care and respond, I hope, in a suitable way. I thank the Committee for its patience in allowing this procedure to take place in this way. Having heard the Minister, I believe that it is important that it was not dealt with by correspondence among a privileged few so that the wider public could not listen, read or understand all the arguments that have been put forward. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 pm

Clauses 89 to 97 agreed to.

Baroness Neville-Jones moved Amendment No. 142A:

142A: After Clause 97, insert the following new Clause—

“Intercept evidence

(1) The Secretary of State shall, within three months of the day on which this Act is passed, report on the progress of the implementation committee set up following the Privy Council Review of intercept as evidence.

(2) The Secretary of State shall, within six months of the report of the implementation committee, bring forward legislation to implement the recommendations of the Privy Council Review of intercept as evidence.”

The noble Baroness said: Given the hour, I shall endeavour to be brief. These are probing amendments concerning intercept evidence, but ones that I hope the Government will feel able to accept. In January this year, the report of the Privy Council review of intercept evidence, which was chaired by Sir John Chilcot, was published. When the review was announced, the Prime Minister said that he,


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