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I place on record the Government’s thanks to the noble Lord, Lord Carlile, for yet another thorough report, which will no doubt inform today’s debate. We will, of course, respond formally in due course, as we will to the JCHR’s most recent report on control orders. The noble Lord, Lord Carlile, continues to view control orders as,

He further notes that,

That view is shared by the other two statutory consultees, the Intelligence Services Commissioner and the director-general of the Security Service.

We currently face a threat from terrorism that is sustained and indiscriminate. Indeed, the threat level is severe. We need to protect the public while ensuring that our fundamental rights and values are safeguarded. Control orders are by no means the whole answer—they are one small part of the panoply in our armoury to protect this nation—but they help to deal with the threat that we face. They are an important part of this overall approach. The risk to the public would increase were these provisions not to be renewed and I do not believe that we can allow that to happen. I commend this order to the House.

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Amendment to the Motion

Moved by Baroness Miller of Chilthorne Domer

Baroness Miller of Chilthorne Domer: My Lords, in moving this amendment, I want to look at what has changed in the four years that Parliament has been approving and reapproving these control orders. In doing so, I will explain why we have, for the first time, tabled a fatal amendment to them.

The House will recall that when these orders were put on the statute book, they were supposed to be a short-term measure to deal with a very real gap in capacity and in measures to deal with the terrorist threat. On 5 March 2007, when these orders were being debated, my noble friend Lord Goodhart reminded the Government of the history of the orders. He said:

“The fact is that the Government are reneging on the undertaking given on 10 March 2005 which was central to the compromise that enabled the Prevention of Terrorism Bill to go through that day”.—[Official Report, 5/3/07; col. 29.]

In 2007, my noble friend Lord Dholakia tabled a non-fatal amendment as we were still waiting for revised legislation that would bring the orders regime back within the framework of the normal legal processes of this country. Last year, I did the same—the Counter-Terrorism Bill, with all its possibilities to revise the system, was only weeks away from its passage through your Lordships' House. In fact, the long-awaited revision never happened. As the Minister said, there were simply some minor amendments. The Government have resisted any substantial change and this year they have expected that we will simply rubber-stamp these orders again.

The noble Lord, Lord Carlile, has talked continually last year and this year about an exit strategy, yet the Government have not produced any evidence of work on one. The Liberal Democrats Benches recognise all the changes that have happened over the past four years and we believe that the time has come to challenge the Government to fulfil the undertaking of which the noble Lord, Lord Goodhart, spoke.

What has changed that should have prepared the Government for a change of regime? There is a growing body of legal opinion, both national and international, that the system is not within the law. In 2007, as the Minister mentioned, the Law Lords found many things wrong with the control order regime, starting with closed hearings and continuing through the day-to-day operation of the orders. They asked for revision rather than finding them unlawful. However, the Government cannot count on that happening again with the latest challenge. The Minister has referred to the appeal which was heard last Monday on procedural unfairness and we await the judgment from that with great interest. The European Court of Human Rights has delivered fundamental criticisms which should have prepared the Government either to radically revise the orders regime or withdraw it altogether. I am sure that members of the Joint Committee on Human Rights will today tell us their view.

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Finally, the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights published its opinion on 17 February this year expressing concern about a parallel legal system developing. It felt that that undermined the rule of law. In international terms, that is extremely serious. I hope that today noble Lords will expand on just what due process should be in British law and just how far short these orders fall.

The Government have also had four years to increase the capacity of the security services, which I am in no doubt they have done. They have increased expenditure and reorganised their strategies and staff. Despite the continuing threat, this must have had some effect that would feed through into allowing a return to the normal rule of law. Last year, the noble Lord, Lord West, in opening this debate, said:

“We must protect the public, while ensuring that our fundamental rights and values are protected. Control orders are an important part of this ... balancing act. They are one of a significant number of measures that can be deployed to protect the public from terrorism”.—[Official Report, 27/2/08; col. 722.]

So he does recognise the balance.

We are not suggesting that the terrorist threat has diminished. Indeed, with the Mumbai bombings and this week the bombing in Pakistan of the Sri Lankan cricket team, we have had a very stark reminder overseas; and here, every day on our screens, we are reminded that the threat remains high. I am sure we are all well aware of it every time we take a tube or a flight or read about the cases that are coming to court. I pay tribute to all those involved in discovering the plots and networks of terrorists. The threat does not seem to have diminished since the last time we renewed these orders and in moving this amendment I recognise that. However, we are suggesting today that the intervening years should have been used to ramp up the other measures and get rid of this one. It was pretty hard to accept in the first place and is certainly not acceptable as the long-term measure it has become. Indeed, it is not even a very effective measure. The Minister mentioned people subject to these orders who have stayed in touch with other groups. Why have they not been prosecuted under the various relevant statutes? There are also the people who have absconded while subject to these orders, so they are not very effective.

Should the Government pray in aid the independent reviewer’s report, I stress that the noble Lord, Lord Carlile, has done a very difficult job with all the considerable skills at his disposal, but he was asked to look at a tool to see if it is working in the way for which it is designed. His job is not to look at the other tools in the tool box; that is for the Government to do. We want the Government to take that look today and to take it very seriously.

We have heard from the Conservatives about this issue over the years, and I look forward to hearing their view again today. Last year, in the debate on 22 February 2007, Patrick Mercer said in the other place that the Conservatives supported control orders with great reluctance but would not be able to do so the following year. He said in conclusion,

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I do hope, especially given the sort of speeches that Conservatives Members made at the convention on liberty this year, they will agree that the time has come to follow their words with their votes.

In the debate in this House on 5 March 2007, the noble Lord, Lord Dear, said:

“Anyone who knows anything about the laws of physics knows that whereas it is easy to go up on the ratchet, it is well nigh impossible to come down”.—[Official Report, 5/3/07; col. 29.]

He reminded the House how important in winning hearts and minds it is not to be seen as repressive. Our amendment today is offering this House the chance to get the Government to think again and to bring the orders regime back from a parallel system to our tried and tested legal system, a system which has won hearts and minds through centuries.

In the introduction to the splendid British Museum “Taking Liberties” exhibition, which I am sure many noble Lords will have visited, the guide reminds us of how Britain has always been seen. The American revolutionary Patrick Henry said in 1788:

“We are descended from a people whose government was founded on liberty; our glorious forefathers of Great Britain made liberty the foundation of everything. That country is become a great, mighty, and splendid nation; not because their government is strong and energetic, but, sir, because liberty is its direct end and foundation”.

As a country we do have a choice to return to a normal rule of law where suspects are charged and tried and where the highly suspicious may be held under surveillance within all the strict codes and guidelines, but where no one is subject to effective house arrest year after year after year. The Government have prepared no exit strategy. They have invited no discussion, even on a draft exit strategy. Parliament—this House—should make the choice. I invite your Lordships to do that today. I beg to move.

Baroness Neville-Jones: My Lords, last year my noble friend Lord Kingsland eloquently set out the position of these Benches. He said:

“We ... take the view that, in circumstances in which it is impossible to prosecute or deport someone, some form of control order system will be necessary. However, control orders are instruments of Executive power and consequently pose dangers to a society based on the principles of democracy and the rule of law”.—[Official Report, 27/2/08; col. 731.]

Indeed, such orders are obnoxious. He went on to say that the system must be limited and that the need for control orders must be reduced.

We are told by the Government that control orders are necessary because it is not possible to prosecute or deport some terrorist suspects and that indeed there is a gap between the court's requirement for evidence and the ability of the state to meet it without prejudice to wider interests of security. These are real issues. However, despite warnings from opposition Benches in both Houses, and despite successive reports from the statutory reviewer of terrorism, the noble Lord, Lord Carlile, on the need to reduce reliance on control orders, the Government have done very little to help close the gap they have identified. Their lack of interest in so doing says very little for their attachment to civil liberties. It is not as if the Government were powerless to improve the situation. They could have taken serious steps to increase the possibility of obtaining admissible evidence, and the likelihood of successful prosecution.

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I will examine two possible routes to reduce reliance on control orders over which the Government are dragging their feet. On the issue of intercept evidence, the noble Lord, Lord Carlile, in his annual review of the control order system, clearly stated that using intercept evidence had the potential to reduce the need to resort to control orders. Despite the Chilcot review accepting as long ago as January last year that using intercept evidence could be beneficial and could be introduced without threatening security sources and methods, the Government have proceeded very slowly. More than a year later, there is no sign of the implementation committee finishing its work. That it should do a proper job is a given. However, the last statement by the Home Secretary was equivocal and, crucially, conveyed no sense of urgency on the part of the Government.

The deportation of foreign suspects is another route to reducing the number of control orders; but despite the Government declaring that this was an important part of their policy, little progress has been made. The Government in 2005 put in place memoranda of understanding with three countries: Jordan, Libya and Lebanon. They exchanged letters with Algeria in 2006. Nearly three years later, there has been only one more: Ethiopia. In a parliamentary Answer given last July, the Government said that they were pursuing agreements with a number of countries. Does the Minister have progress to report? Is the necessary muscle being put into achieving what the Government call an important part of their policy?

Last month’s House of Lords judgments in three cases, including that of Abu Qatada, demonstrated that deportations with assurances are compatible with the European Convention on Human Rights—which of course is the point. The Government need to pursue their own policies with more vigour. I ask the Minister if the Government have made a quantitative assessment of how far using intercept evidence and deporting suspects would reduce the number of control orders. Have the Government looked into whether individuals presently subject to control orders can be prosecuted now that the range of terrorism offences has been extended significantly? Legislation such as the Counter-Terrorism Act 2008 included a number of new offences, and also made terrorist connections an aggravating factor in prosecuting and sentencing. The statutory reviewer, the noble Lord, Lord Carlile, stresses time and again in his reports that the cases of those subject to control orders should be under constant review. If, in the light of their own legislation, the Government have not reviewed the possibility of successful prosecution, could the Minister explain why? What is the point of all this legislation if the Government do not use the powers they take?

As well as doing very little to reduce the need for control orders, the Government have also refused suggestions from all sides of your Lordships’ House that would have made the current system significantly more compatible with our notions of the rule of law and with our human rights obligations. With this aim in mind, during the passage of the Counter-Terrorism Bill 2008, we on these Benches tabled two amendments

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on control orders. The first would have required the Director of Public Prosecutions to decide whether prosecution was the appropriate course of action to take in respect of each potential controlee. The DPP would have had to declare that the prosecution was impossible before a control order could be activated.

The decision on whether to prosecute is taken currently by a chief police officer. However, in previous reports, the noble Lord, Lord Carlile, has raised two objections to this. He described the wording of Sections 8(4) and 8(5) of the relevant Act as strange. It contains an obligation—the word “must” is used—for the police to consult the relevant prosecuting authority, but—here is the critical and odd point—it goes on to say only,

The noble Lord, Lord Carlile, also said:

“I have seen letters from chief officers of police in relation to each controlee certifying that there was no realistic prospect of prosecution. Little is given by way of reasons. Whilst I have no evidential basis for doubting, in my view the letters provided by chief officers should give clear reasons for the conclusion that there is not evidence available that could realistically be used for the purposes of a terrorism prosecution”.

Those are important words.

The noble Lord further suggested that the letters should make it clear why no additional investigation will be undertaken and why different forms of evidence-gathering would not or could not be undertaken. To get the reasons, and to get the reasons out in the open as to why a prosecution was not possible, was the reason why we on these Benches thought that a decision on whether to prosecute would be better taken by the DPP.

The second amendment would have ensured that the prospect of prosecution, if legitimately considered and properly rejected at the outset, should nevertheless be kept under regular review. That point is picked up by the Joint Committee on Human Rights. It said recently that it,

precisely. As I said, the amendment that we tabled would have ensured that the prospect of prosecution would be kept under regular review. I do not know why the Government could not have accepted these amendments; they would have been wise to do so. The Court of Appeal has previously said that the Secretary of State’s duty to review the prospects of prosecution should be expressed in statute.

There are other problems with the current system of control orders. We did not table amendments on these, but they are well known and need to be addressed. The first is the need for due process. We are not happy with the use of special advocates and the fact that the defendant receives no information on the case against him. As the noble Baroness, Lady Miller, said, the recent report by the international eminent jurists panel said that control orders could give rise to a parallel legal system. I know that the Law Lords are currently considering what measures are necessary to ensure a

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fair trial, but should not the Government take the lead and themselves be active on this?

Finally, let me turn to what the noble Lord, Lord Carlile, calls the “end game” for control orders. The noble Lord has consistently recommended that there be a recognised and statutory presumption against the extension of control orders beyond two years. He has not set an arbitrary limit; he has set a presumption. He has given reasons for this:

“It is only in a few cases that control orders can be justified for more than two years. After that time, at least the immediate utility of even a dedicated terrorist will seriously have been disrupted. The terrorists will know that the authorities will retain an interest in his or her activities, and will be likely to scrutinise them in the future. For those organising terrorism, a person who has been subject to a control order for up to two years is an unattractive operator, who may be assumed to have the eyes and ears of the State upon him/her”.

Do the Government accept the reasoning of the noble Lord, Lord Carlile? In another place, the Minister of State said:

“The Government believe that control orders should be imposed for as short a time as possible, commensurate with the risk posed”.—[Official Report, Commons, 3/3/09; col. 738.]

The Minister has made that point. Is this view being seriously reflected in what actually happens?

If the Government had accepted our two amendments to the then Counter-Terrorism Bill, and if they had made progress on addressing other well-known problems with the control orders regime, we would have been much more sympathetic to their renewal today.

As it stands, we are most certainly not sympathetic. As shadow Security Minister, I am in a difficult position. I am clear that the Government have been less than energetic in their efforts to close what they call “the gap”. Mostly because of this, I cannot prove that none of the orders is necessary, and I am not in a position to assert that there is no valid security reason for them that justifies obstructing their renewal. Let me be clear—just as there is a positive obligation on Government, imposed by human rights law, to take effective steps to protect the public from real threats of terrorism, so human rights law imposes obligations and tests on our counterterrorism legislation. My constant objection to the policies of this Government is that they show too little regard for the second set of obligations.

As my noble friend Lord Kingsland said,

That is our problem here today.

In the light of this guiding principle, a Conservative Government would, should we enter office, not only review the current control order regime but review, rationalise and consolidate the plethora of existing counterterrorism legislation. In so doing, we would take measures to close "the gap" and would replace the present control order system. We would find ways of bringing the UK into line with other comparable democracies on the use of intercept evidence in court in terrorist cases. We would end the abuse of stop-and-search powers, which are available under terrorist legislation—those powers are being used for non-terrorist

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related incidents. We would stop inappropriate surveillance by public bodies and re-examine controversial offences relating to distribution of literature and glorification.

As for today, if the House divides, I invite my colleagues on these Benches to abstain.

Baroness Stern: My Lords, I cannot say that I welcome or enjoy this annual renewing of the order. However, in the circumstances, it seems important that it should take place, so that at least once a year Parliament gets the opportunity to consider this measure, those subjected to it, the way in which it is implemented and its implications for the rule of law and human rights. As I said last year, my concern in this matter has always been to ensure that we do not at any time forget the severity of this measure and the effect that it has on those subject to it, who include the families and friends of those under control orders.

The noble Lord, Lord Carlile, has once again given us a considerable amount of information in his report on the conditions imposed and their intensity. I thought that it would be helpful to put on the record some of the detail of just one case, to indicate the everyday reality of these orders for the individuals who are subject to them. This is Case 15, and can be found in Annexe 1 of the report of the noble Lord, Lord Carlile.

Case 15 has 20 of the 22 possible restrictions. He is electronically tagged. He is under curfew for 16 hours a day. He must report daily by telephone. His visitors are restricted, except for some family members. He cannot meet anyone outside his home without approval. He is issued with a list of people with whom he must not associate. He must let the police in at whatever hour they come. Communications equipment in the house is restricted. He can attend only a specified mosque—the text says “mosque”, and I am not sure what one should conclude from that. There are places that he cannot go to at all. He must tell the Home Office if he intends to leave the UK. He can have only one bank account. He needs approval to send anything abroad, apart from personal letters. He must surrender his passport. He cannot leave the UK. He cannot go to a port or a railway station. He must report daily to a specified police station. He must tell the Home Office if he works. Finally, he must get prior approval to study. He was exempted from two of the 22 possible conditions.

12.15 pm

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