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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. The amendments are therefore either unnecessary, as the proposals are already in place, or damaging, as they would undermine the independent role of the police and CPS. None of the amendments is required by the House of Lords judgment in the case of E. If our roles were reversed, and the Government were suggesting that the Secretary of State should have a role in deciding whether to prosecute any individual, I am sure that there would, rightly, be a chorus of condemnation from noble Lords across the House. I therefore fail to understand why noble Lords opposite are so keen on the amendments. For their part, the Government remain firmly against them. I hope that the noble Lord will not press them.

Lord Kingsland: My Lords, I am most grateful to the Minister for giving such detailed consideration to the two amendments that we tabled. I am somewhat puzzled that he thinks that our drafts are in some way inconsistent with the judgment of the case of R v E. I have just glanced at paragraph 69 of the 10th report of the Joint Committee on Human Rights for the Session 2007-08. It states:

“The Secretary of State argued in the Court of Appeal in E that, having consulted the chief of police at the outset, she need do no more thereafter than make periodic inquiry whether the

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prospect of prosecution had increased. The Court of Appeal rejected that argument and held that more was called for from the Secretary of State”.

The Court of Appeal stated:

“Once it is accepted that there is a continuing duty to review ... it is implicit in that duty that the Secretary of State must do what he reasonably can to ensure that the continuing review is meaningful ... it was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution”.

Paragraph 70 of the Joint Committee’s report states:

“The House of Lords in E endorsed the Court of Appeal's approach”.

I cannot understand what is inconsistent in our Amendment No. 48C with that conclusion of the Appellate Committee of your Lordships' House. It sets out as accurately as possible the nature of the appropriate relationship between the Secretary of State and the police stipulated by the Appellate Committee.

I was pleased to hear from the noble Baroness, Lady Manningham-Buller, that co-operation in the post-control order process between the Secretary of State and the police was as good as it possibly could be in the circumstances of the raw material with which they had to deal. If that is so, what possible harm could the amendment do the Government or the public interest? The great good that it does the rule of law is to make the statement explicit in legislation rather than leave it implied in a case which is, anyway, binding on the Government.

The principles set out in Amendment No. 48C are principles that the Government are obliged to accept as a result of the law of the land determined by its highest court. Why are the Government frightened of having it set out in legislation? Perhaps it is because they have further thoughts about how they might resile from the court's judgment. That could well be implied from what the Minister said.

As far as Amendment No. 48B is concerned, particularly in the latter part of his speech, the Minister went out of his way to emphasise the importance of the CPS as an independent body; but that importance is nowhere emphasised in the Prevention of Terrorism Act 2005 itself. The main purpose of Amendment No. 48B is to state, in terms, in the Bill that prosecutorial decisions are taken not by the police but by the CPS.

The Minister then drew my attention to the way in which the amendment might damage the public interest; but as far as prosecutorial decisions are concerned it is the DPP who is constitutionally responsible for determining where the public interest lies before he decides that a prosecution should go forward. He will undoubtedly consult on this matter. He will consult in many directions and if necessary take the view of the Attorney-General. If he does, the Attorney-General is almost certain to approach the Home Secretary before she makes her mind up as to what advice to give to the DPP about where the public interest lies. It is through that process that the public interest under our constitution is defined. It is not defined by the Secretary of State, the police or the security services. It is defined by the DPP, if necessary on advice of the Attorney-General.

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There is nothing inconsistent with those constitutional principles in our Amendment No. 48B. I am grateful to the Minister for setting out his views in such detail but, in the circumstances, I wish to test the opinion of the House.

7.09 pm

On Question, Whether the said amendment (No. 48B) shall be agreed to?

Their Lordships divided: Contents, 103; Not-Contents, 112.

Division No. 2


Addington, L. [Teller]
Anelay of St Johns, B. [Teller]
Barker, B.
Bates, L.
Bowness, L.
Bradshaw, L.
Brookeborough, V.
Brougham and Vaux, L.
Burnett, L.
Caithness, E.
Carnegy of Lour, B.
Cathcart, E.
Chester, Bp.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Craigavon, V.
Crathorne, L.
De Mauley, L.
Dean of Harptree, L.
Denham, L.
Dixon-Smith, L.
Eccles, V.
Eccles of Moulton, B.
Falkland, V.
Ferrers, E.
Fookes, B.
Fowler, L.
Fraser of Carmyllie, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Glentoran, L.
Goodhart, L.
Greaves, L.
Hamwee, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Howard of Rising, L.
Howe, E.
Howe of Idlicote, B.
James of Blackheath, L.
Jenkin of Roding, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Laird, L.
Lee of Trafford, L.
Lindsay, E.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
McAlpine of West Green, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Neville-Jones, B.
Newby, L.
Newton of Braintree, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Pearson of Rannoch, L.
Rawlings, B.
Reay, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B.
Sheikh, L.
Shutt of Greetland, L.
Skelmersdale, L.
Steel of Aikwood, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Sutherland of Houndwood, L.
Taylor of Holbeach, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tordoff, L.
Tyler, L.
Ullswater, V.
Verma, B.
Waddington, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Williams of Crosby, B.
Willoughby de Broke, L.


Adams of Craigielea, B.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bernstein of Craigweil, L.
Bew, L.

11 Nov 2008 : Column 617

Bhattacharyya, L.
Bilimoria, L.
Blood, B.
Borrie, L.
Bradley, L.
Bragg, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Cameron of Lochbroom, L.
Campbell-Savours, L.
Carter of Coles, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Cox, B.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Donoughue, L.
Drayson, L.
D'Souza, B.
Elystan-Morgan, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gould of Potternewton, B.
Grantchester, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howie of Troon, L.
Hughes of Woodside, L.
Irvine of Lairg, L.
Jay of Ewelme, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kilclooney, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Leitch, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maxton, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Myners, L.
Pannick, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Quin, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Smith of Leigh, L.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Triesman, L.
Tunnicliffe, L.
Turnberg, L.
Warwick of Undercliffe, B.
West of Spithead, L.
Whitaker, B.
Woolmer of Leeds, L.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.20 pm

[Amendment No. 48C not moved.]

Lord Kingsland moved Amendment No. 48D:

48D: After Clause 80, insert the following new Clause—

“Control orders: right to fair hearing

(1) The Prevention of Terrorism Act 2005 (c. 2) is amended as follows.

(2) At the end of section 3(13) (supervision by court of making of non-derogating control orders) insert “except where to do so would be incompatible with the right of the controlled person to a fair hearing”.

(3) In the Schedule (control order proceedings etc.), at the end of paragraph 4(2)(a) insert “except where to do so would be incompatible with the right of the controlled person to a fair hearing”.

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

(5) After paragraph 4(5) 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 guaranteed under Article 6 of the European Convention on Human Rights.”.”

The noble Lord said: My Lords, I now turn to the question of whether the terms of Section 3 of the Prevention of Terrorism Act 2005, its Schedule and the rules of court made under them are sufficient to provide a potential controlee with a fair hearing before an order is made, as required by Article 6(1) of the European Convention on Human Rights.

The Appellate Committee of your Lordships' House decided, in the case of R v MB, that they were not, and they could become Article 6(1)-compliant only if certain convention protections were read into the statutory provisions by the court. It is our view that these convention protections should now become express stipulations on the face of the Prevention of Terrorism Act, not least because it would afford a degree of certainty in an area of law which engages the fundamentals of liberty. However, if their previous reaction to the proposals in this amendment is anything to go by, the last thing the Government seem to want is greater clarity.

The issue that lies behind our amendment is whether the procedures provided by Section 3 of and the Schedule to the Prevention of Terrorism Act 2005 and the rules of court made in pursuit of it are compatible with Article 6 of the ECHR, in circumstances where the case made out against the potential controlee is, in essence, entirely undisclosed to him. We readily accept, of course, that, in a democratic society governed subject to the rule of law, there will always be difficulties in reconciling the individual’s right to a fair trial, on the one hand, with the preservation of secrecy in the interests of national security, on the other. The question is, in the context of our amendment, are there, or should there be, circumstances in which one of these two considerations—the national security consideration—trumps the other so as to permit the imposition of a control order without disclosing to the potential controllee the basis upon which it is sought?

In R v MB, the potential controlee was confronted by a bare, unsubstantiated assertion which he could do no more than deny. In an ordinary case, by contrast, a client instructs his advocate on what his defence is to the charges made against him, briefs him on the weaknesses and vulnerabilities of the other side’s witnesses and indicates what evidence is available by way of rebuttal. In this case, none of these courses was open to MB. Moreover, the special advocate appointed to represent MB’s interests did not challenge the Secretary of State’s application to withhold the closed material from him and accepted that it would not be possible to serve a summary of evidence which would not contain information or material the disclosure of which would be contrary to the public interest. The noble and learned Lord, Lord Bingham, concluded that he had difficulty in accepting that,

11 Nov 2008 : Column 619

In the light of this, the noble and learned Baroness, Lady Hale, one of the five Law Lords sitting in this case, asked herself whether the use of the special advocate system can resolve the problem in circumstances where the Secretary of State wishes to withhold from the controlled person the material upon which he wishes to rely in order to establish his case. She concluded that:

“I do not think we can be confident that Strasbourg would hold that every control order hearing in which the special advocate procedure had been used as contemplated by the 2005 Act and Part 76 of the Civil Procedure Rules would be sufficient to comply with Article 6”.

The difficulty for the judiciary in these circumstances, as analysed by the noble and learned Baroness in her speech, is as follows. Paragraph 4(2)(a) of the Schedule to the 2005 Act provides that rules of court may,

Paragraph 4(3)(d), moreover, provides that the rules of court must be,

These provisions are carried through and fleshed out in the civil procedure rules. Thus, the judge, in any one of these cases, is precluded from ordering disclosure to the potential controllee even when he considers this essential in order to give the controlled person a fair hearing. This would not matter so much if the judge was then entitled to refuse to uphold the control order. However, Sections 3(12) and 3(13) of the Act allow him to quash an order only in very strictly defined circumstances which, on the face of it, do not include the requirements of a fair hearing.

However, the judge is also a public authority for the purposes of the Human Rights Act and therefore under a duty to act in conformity with convention rights. If, therefore, a judge concludes that a hearing cannot be fair unless more material is disclosed, the relevant convention provisions require him to be placed in a position under domestic law where he can quash the order. Accordingly, the noble and learned Baroness, Lady Hale, concluded that Section 3(13) and paragraphs 4(3)(d) and 4(2)(a) of the Prevention of Terrorism Act 2005 were required to be modified by the expression “except where to do so would be incompatible with the right of the controlled person to a fair hearing”.

All our amendment seeks to do is to place that expression, which the Appellate Committee of your Lordships' House implied into certain provisions of the Prevention of Terrorism Act to make them compatible with our ECHR obligations, on the face of the Act. The words of our amendment are the words of the noble and learned Baroness, Lady Hale, in R v MB. I beg to move.

7.30 pm

Lord West of Spithead: My Lords, before I speak to the amendment, I shall take the opportunity to mention one issue related to control orders that is not directly

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related to the amendment. In Committee, the noble Baroness, Lady Miller of Chilthorne Domer, moved her probing amendment to what is now Clause 77. The clause provides the police with powers of entry and search in specified circumstances. The noble Baroness expressed concern about whether the clause was sufficiently tightly worded, while acknowledging that it did not seem likely that the police would undertake any inappropriate search.

In responding to the noble Baroness, I indicated that I would ask officials to take another look to see whether the drafting of the relevant powers could be improved to ensure the desired clarity in the Bill. I am pleased to say that we have now identified a form of words that will preserve the power of the police to search appropriate premises but that will also make clear that the right to search previous properties must be based on there being a current or recent connection between the controlled individual and the property. I propose to table an amendment to that effect at Third Reading.

Amendment No. 48D is one of a group of amendments previously tabled by Members who sit on the JCHR and debated in Committee. All of them were 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 I explained in Committee, this issue has been considered at length, including extensively by the courts. One of the House of Lords judgments of October 2007, MB, dealt explicitly with the right to a fair trial in the context of control orders, as mentioned by the noble Lord.

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 Lords on this issue were referred back to the High Court.

As a result of the MB judgment, the Prevention of Terrorism Act 2005 is fully compatible with the European Convention on Human Rights. No further changes were required by the Law Lords. The amendment seeks to amend the 2005 Act to reflect the read-down by the Law Lords in MB, but it also adds some additional wording that was not part of the read- down. I am afraid that the arguments put forward in Committee and again today that the amendment is necessary to provide legal certainty and fairness are simply wrong. The Government are clear that there is no need to legislate to reflect the principles formulated in case law as currently interpreted by the courts. As I explained to noble Lords in relation to the previous group, that is because 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. Case law can and does provide sufficient precision and clarity to comply with the important concept of legal certainty, just as much as statute can.

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It has been argued that without an amendment to the Act the position as a result of the Lords judgment is unclear and controlees are not guaranteed fairness. That assertion has no basis in fact. The proposed changes would be of no practical benefit to controlees. At the risk of repetition, as noble Lords know, both statute and case law are sources of legal authority. The courts interpret, and are bound by, both. Transposing identical wording from one source of authority to another—that is, from case law to statute—will not make any difference. It is also considered bad practice to legislate unnecessarily.

For those reasons, proposed new subsections (3) and (4) in the amendment, which add in the exact words already effectively added to the Act by the MB judgment, are redundant. Proposed new subsection (5) makes a further amendment to paragraph 4 of the schedule to the 2005 Act. It is also unnecessary, for related but not identical reasons. It reflects the wording included in the asset freezing provisions in Clause 66(6). The provision in Clause 66(6) is included in the asset freezing clauses, instead of the words of the MB read-down, to give effect to the MB judgment 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 66(6) in the 2005 Act, because the MB read-down already makes things clear for the 2005 Act. It would involve unnecessary duplication. The bottom line is that neither of the approaches is necessary, given the MB read-down.

Proposed new subsection (2) is unnecessary for different reasons; those reasons mean that the subsection is also potentially damaging to the public interest. It amends Section 3(13) of the 2005 Act. Section 3(13) can only be understood in conjunction with Section 3(12). They read as follows:

“If the court determines, on a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), that a decision of the Secretary of State was flawed, its only powers are ... power to quash the order ... power to quash one or more obligations imposed by the order; and ... power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes ... In every other case the court must decide that the control order is to continue in force”.

Proposed new subsection (2) adds to the end of Section 3(13) the words,

That was not part of the read-down by the House of Lords, because the read-down means that it is not a possible outcome of a control order hearing. 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 for the controlee to have a sufficient measure of procedural protection, the Secretary of State will be put to her election. That means that the Secretary of State is then given a choice whether to disclose the information or withdraw it from the case. If the latter, the case then proceeds without that material included. Either way, the case continues in a manner compliant with Article 6. That means that a judge will never be put in a position where he has to uphold a control order where the

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proceedings have not been compatible with Article 6. There is thus no need for the qualification to Section 13(3) provided by proposed new subsection (2) in the amendment.

If proposed new subsection (2) could be interpreted as going beyond the scope of the read-down, meaning that it was the court’s job to quash the order without first putting the Secretary of State to her election, it is also damaging to the public interest, because it would potentially expose the public to an unnecessary risk of terrorism.

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