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Some more light on the reality of this measure comes from the very helpful table of litigation on pages 15 to 17 of the report of the noble Lord, Lord Carlile. From this, we learn that a control order was quashed on this ground:

“Evidence of sympathy with insurgents insufficient on its own”.

From another case, we learn that the detainee was required to,

From another we read:

“Controlee recently sectioned under Mental Health Act 1983”.

This is the same controlee who the court said was:

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“No longer required to report by telephone to a police station in the early hours of the morning; nor to obtain prior approval for female visitors to his family at home”.

For another case, there was a,

A court said:

“Relocation to unfamiliar area and 16 hour curfew not of themselves disproportionate. However, those restrictions combined with ban on attending pre-arranged meetings outside his home, and consequent social isolation, made this deprivation of liberty contrary to Art 5”.

Those give a helpful insight into the experiences of some individuals.

The Home Office’s Control Order Review Group, which reviews each control order on a quarterly basis, has an important role. One of its functions is:

“To monitor the impact of the control order on the individual, including on their mental health and physical well-being, as well as the impact on the individual’s family and consider whether the obligations as a whole and/or individually require modification as a result”.

This is vital and I was glad to hear the Minister say that it is rigorous. I am sure that it is, but it would be very helpful for the House to know how it is done. Is there an independent doctor or a social worker? Who makes the assessments about mental health and physical well-being? Does someone interview the family members and the children? If the Minister could give the House some information on how the Control Order Review Group satisfies itself on these matters, it would help noble Lords to understand, as I am sure is the case, that this responsibility is taken very seriously, for these are extraordinarily stringent measures.

I cannot begin to imagine what it must be like to be a family member living in a house where the husband or father is subject to a regime such as this. It can be imposed without a charge, a trial, a jury or any public scrutiny of the proceedings, and for time without end. Last year, I raised the question of the length of control orders. Two of them have now been in place for more than three years.

The more one finds out about this system, the more anxieties arise. I agree very much with the words of Douglas Hogg MP, in the debate on Tuesday in the other place. He said that,

I agree that it is indeed profoundly unsatisfactory. I am sure that we could do better than this with all the experience that we now have and I am very grateful to the noble Baroness, Lady Miller, for moving her amendment, which I shall support.

The Lord Bishop of Norwich: My Lords, in February last year the General Synod of the Church of England requested,

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That was passed nearly unanimously; for the General Synod to do anything nearly unanimously is a bit of a miracle in itself.

The impact of the restrictions imposed on individuals through control orders, as the noble Baroness has just illustrated, can be cumulatively highly repressive, leading to mental health problems not just for the person being controlled but for their wider family. This is deeply serious for someone who is legally innocent. When do cumulative restrictions on liberty become the deprivation of liberty? Where do we set the boundary? This is a crucial question for what we still describe as a free society, of which control orders are meant to be protective. In some cases, the cumulative impact of restrictions gets very close to house arrest. That is what greatly concerns these Benches.

This order is an unsatisfactory expedient for many reasons. When you can neither deport nor charge someone about whom strong security suspicions exist, it is hard to see an immediate alternative. However, Governments can get used too easily to the exercise of such powers. That is why it is important to voice concerns about the conditions and restrictions that may be applied. Issues of natural justice arise when the reasons why someone is subject to a control order are withheld from them while the special advocate presenting their case is aware of them. We need to recognise the ways in which this system can offend natural justice and be vigilant about finding a better way. At least being subject to annual debate and renewal indicates the seriousness of the exceptional provision.

The breadth of the powers given to the Secretary of State under this order present a considerable temptation and we pray daily in this House that we shall not be led into temptation. A separate, urgent and considered review of the restrictions that may be imposed might be one way of resisting the temptations that go with this order.

The Earl of Onslow: My Lords, I speak as a member of, although not on behalf of, the Joint Committee on Human Rights. Having listened to the noble Baroness, Lady Stern, all I can say is that our committee is very sorry that she is not still a member, as her contribution was incredibly important.

I had written in my notes about the limit of time and the fact that somebody could be held in a one-room flat in Ealing for 16 hours with curtailment on whom he sees outside and what he is allowed to do. The noble Baroness, Lady Stern, very reasonably and with great impact, filled out the details of what a control order means to the controlee. It is as near imprisonment without trial as it is possible to get. Our final paragraph in the Joint Committee on Human Rights report states:

“As in previous years, we therefore have very serious reservations about the renewal of the control order regime unless the Government is prepared to introduce the safeguards we have identified as necessary to render it human rights compatible. Without those safeguards, the use of control orders will continue to give rise to unnecessary breaches of individuals’ rights to liberty and due process”.

The liberty issue has been completely and utterly shown by the noble Baroness, Lady Stern. The due

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process issue is the fact that the persons are not allowed to see the evidence against them. We took the view that it is only just that someone who has been accused of something should be able to see the evidence against them, although I accept that it may have to be slightly edited.

Our other concern was on intercept evidence. Why, as my noble friend Lady Neville-Jones said, has it taken such a long time to make a decision? The Government seem to be acting like Fabius Maximus the Cunctator—the delayer. I hope that they are as successful as he was.

The other extremely unpleasant fact is that these people can be held for a limitless time. That cannot be right under any circumstances. People are held in pretty unsavoury conditions, which certainly lead to mental health problems. They are held without hearing the evidence against them and they can be held for an interminable time. That is completely unsatisfactory and it goes against the grain of all our ancient liberties and constitution. It should be, and can be, rectified.

We accepted that the Government should publish the report of the noble Lord, Lord Carlile, a month before renewal to allow for information to be put in the public domain and for a better debate to take place. The noble Baroness, Lady Miller, raised the issue of people who absconded—four or five of them, I think. They just went absent and we heard no more about them. Have they gone back to play with the ungodly? Have they gone back to doing things of which they were suspected, or have they just vanished? If they can just vanish without any further damage, they were not really doing very much damage; otherwise, they should have been prosecuted.

Finally, they must, must, must be prosecuted. If I were my noble friend Lady Neville-Jones, I would have said to Her Majesty’s Government, “This time you can get it, but not next time”. Next time I would support an amendment moved by the noble Baroness, Lady Miller, or even move one myself, that the regime should not be renewed, because it is unsatisfactory, it is against our traditions and the Government are being idle in allowing it to carry on.

Baroness Butler-Sloss: My Lords, for all the reasons that have been expressed, control orders are in principle objectionable. They may also have an adverse effect on the children of detainees in such minor ways as the children being unable to use, or have very limited use of, computers, which of course all children nowadays have to use at school. It is perhaps a small matter, but it could be alleviated for the children of these suspects.

I also agree with the criticisms of the Government’s failure to deal with intercept evidence. It really is time that it was looked at properly and that something was done about it. The Government should seek other methods in addition to control orders.

However, the Minister tells us that among the 15 suspects, intercept evidence, if it had been put forward, would not have been relevant to the trials of some of them. One has to bear that in mind if that is the case. The Government should be looking at alternatives to reduce the number of control orders, but, with the greatest possible reluctance, I recognise that if one

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balances the importance to the public of security against the tension of control orders for this number of people, with the provisos that have been mentioned, I cannot see how we can legitimately oppose today’s order. It extremely important that the order should be renewed and that the criticisms made today should be met by the Government before this time next year.

12.30 pm

Lord West of Spithead: My Lords, I thank all noble Lords who have spoken for their important contributions. I have thrown away my detailed speaking notes because to go this through point by point again and again—I did a lot of that in my introduction—would be meaningless. Do we like control orders? The answer is no. They are a least-worst option. That is reflected in the numbers involved. Fifteen people are on control orders and yet we are monitoring more than 2,000 people, many of whom, as we know from intelligence, intend us harm. These are the people who are really capable of doing us harm. We would much prefer, as a number of noble Lords have said, to go through the courts. It is unfair to say that we do not try very hard to do that. The CPS and the police would be most upset to think that they are not seen as trying extremely hard to proceed against these people in court.

The problem is the difference between intelligence and evidence. The noble Baroness, Lady Manningham-Buller, spoke eloquently on that when we discussed control orders during proceedings on the Counter-Terrorism Bill. One of the issues, as she said, is that it is hearsay. That does not mean that there is not incredibly compelling intelligence. Can you imagine what the Government would face on the Floor of the House if there was an outrage such as 7/7? If one looks at some of the people involved in that, they were the most unlikely people. There might have been the odd strand of intelligence, but if there had been really serious intelligence against these people and we had allowed them to commit such an outrage, quite understandably we would be culpable and I would be hammered and slapped around about it and so would the Government. We cannot take any chances; the issues are too dangerous.

We talked about deportation with assurances. Clearly, if the person is not British, it is a wonderful way of getting them out of here. It is amazing how people who hate us, our system and our way of life will fight so hard to stay in this country. I do not blame them because this country is amazing; it is a wonderful country and we bend over backwards to give all those freedoms to our people that we have to balance all the time in this. They may hate us but you try and get rid of them. We have put a lot of effort into dealing with a number of countries. Ethiopia was mentioned. I went there myself to do the final push to get an agreement with them. It is quite hard and we have to be careful which countries we get a DWA agreement with. There are some countries, I fear—I would not be so stupid as to mention them on the Floor of the House—which we would be very worried about sending someone back to because they would be far worse placed than they are in this country, living in their own home with certain restrictions.

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To pretend that we are not doing anything is not correct. The Government are working extremely hard on this. We do not have control orders for some weird authoritarian reason. I do not particularly like having to keep coming here and talking about control orders, but the people involved with them have to work extremely hard. It is not an easy option. There is a lot of work involved in reviewing these things, making sure we get them right and going through the correct judicial procedures. It is a lot of extra work and it is not the easy way out. This is not political posturing; I do not do political posturing. This is something that we feel really has to be done to make the nation safer. If we did not have to do it, we would not, because it is not an easy option.

I want to reinforce the important difference between intelligence and evidence. As I said, the noble Baroness, Lady Manningham-Buller, spoke extremely eloquently on the issue and it would be worth looking back in Hansard at what she said. There is a huge difference and that is part of our problem with a number of these issues and with counter-terrorism as a whole. We know of threats and attacks that have happened because we have been very successful at putting people away—as I mentioned before, 51 people in 18 cases last year with 21 of them pleading guilty. We are using the Counter-Terrorism Act to do this and, as an aside, I should like to see a rationalisation of the Counter-Terrorism Act. The noble Baroness, Lady Neville-Jones, mentioned that and I agree with her. I should like to see a simplification. But we are using all those powers and we have been very successful in putting people away. That is a good thing because it is what we want to do. It has shown us clearly what evil these people want to do against us, which is sobering and very unpleasant.

We are using composite measures to look after the safety and security of this nation. When my right honourable friend the Prime Minister asked me to join the Government in 2007, he said, “I think you can do something to help the security of the nation”. I was not big-headed enough to think I could but he thought I could, so I was willing to try. I can assure the House that every day since then I have thought about that safety and security and have looked at things like control orders. I was not happy with control orders. I have pushed extremely hard to make sure that the CPS and the police work to get a prosecution and I have pushed extremely hard on the DWA side. I have asked, “Are we sure we cannot get exactly the same surety by some other means if we throw resources at this? What if we were to put more Security Service, more Special Branch people, onto this? Could we get the same level of surety that we are getting from control orders? Because if we can, perhaps that is worth doing”. That work is ongoing; I am still looking at that and prodding.

A certain number of people will be involved and there will be issues of prioritising because, as I say, we are looking at more than 2,000 people who wish to do us harm. The ones I really worry about are the ones we do not know about, because there will be people like that. If we can get the same level of surety by using 200 to 300 specialists to look at the 15 people on control orders in more detail, on top of what we

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already have—because they have to be looked at around-the-clock in such a way that they do not know it is being done—then perhaps we should get rid of control orders. But you noble Lords imagine the impact. We have doubled the size of the Security Service but we would be taking that number of people away from other operations. As it is, we have a batting order; we look at this at the weekly security meeting. It is quite worrying but I can assure this House that I am pushing all the time to try to make a difference. We do not do this lightly; we do it for the safety and security of this nation.

There has been a certain amount of talk about intercept as evidence. It is na├»ve to think that it is a panacea for control orders or for anything else. I object to anyone thinking that we have not been taking this seriously and pushing it forward. There has been cross-party involvement. The Chilcot study came up with a number of conditions that had to be met. As I have said a number of times on the Floor of the House, one of the huge capability advantages we have is some of the techniques we use. Those techniques are not known by the people who wish to do us harm and that is very important for the safety of this nation. We must not lose that edge, as we move forward with the Chilcot report—and we want to be able to accept that and do it. For example, 15 years ago UBL used a mobile all the time. I know that because I was involved in the intelligence world and we knew that he did that. There is no way on earth that he would do that now or be anywhere near one that was being used. Why not? Because he has heard, because of court cases and other things, that would point to exactly where he was. We could get in and find out everything he said. If he was unlucky enough to be hit by a predator, by the Americans, you never know what might happen, but he knows that they pick these things up. We must not give that away. We have to be very careful about intercept as evidence. We want to be able to use it, but that has to be looked after.

I know from my involvement in Northern Ireland that you need people who have been listening for months if not years to the dialect and the words they use. I know from a particular incident there that even at the moment a man was about to kill one of our soldiers we could not tell from listening to that. When we looked back at it, we could work out that that was going to happen, but we could not tell at the time because you need such skill to do it. Juries are not going to be able to work that out, so we have to be really careful in this area.

On the loss of life, I was delighted that the noble Baroness, Lady Miller, paid tribute to our people in the agencies, in the police and in the OSCT who are doing very hard, detailed jobs extremely well. These are good people, just like us. They are not some evil, authoritarian bunch; they are good people who come from among us and do very hard work. I must just say, because it makes me so angry at times, that they have to work for about 20 years to earn the same amount of money as an incompetent banker gets in one year of his pension. However, that is an aside. They work extremely hard and we should be very proud of them.

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I will write to the noble Baroness, Lady Stern. I have two pages on the Control Order Review Group and all the things that we go through. The things that the JCHR has picked up are absolutely right, and I agree that the input of the noble Baroness, Lady Stern, into the JCHR was extremely valuable. These things are very important. These restrictions are placed on people, although these people are in their own homes, so I do not necessarily agree with the noble Earl, Lord Onslow, that they are in particularly squalid conditions. Some of the homes are, I am sure, delightful. We are aware that these restrictions are there and that this is very important, so many things are checked. I will return to the noble Baroness in writing on that point, if I may.

I do not intend to go into all the legal issues again; I touched on them in my opening comments. The Government remain very firmly of the view, as I said, that the order fully complies with the European Convention on Human Rights and that everyone will be fully aware after the debate of all the things that are being looked at by the Lords.

The amendment tabled by the noble Baroness, Lady Miller, is, I fear, misguided. I understand why she tabled it, but it is misguided if it goes through as it is. If this House votes for it, 15 highly dangerous men will be taken off the control order regime next Tuesday. The advice of the Security Service and the police force to me—this is also my judgment, because I have pushed and prodded them for 18 months about this—is that they will not be able to monitor these men as effectively as they have. We will be putting our nation and its people at risk, which is not what we should do. Indeed, I cannot imagine that that is the intention of this House. I urge the noble Baroness to withdraw her amendment. If she decides to press it to a vote, I strongly urge all noble Lords to vote against it.

Baroness Miller of Chilthorne Domer: My Lords, I thank all those who have spoken in this debate. The Government should take from it a very strong marker that, even if we do not win the vote today—should I push my amendment to a vote—this will be the very last time that this House will take that view.

The noble Baroness, Lady Neville-Jones, laid out very well the frustration felt by those on her Benches about some of the things that have not happened, such as progress on intercept evidence. There has also been very little progress on deportation. I am happy to share the Minister’s two insults. I am sure that they were not intended as insults, but the noble Baroness was called naive by the Minister and I have been called misguided. I am in very good company with her if I am going to share the Minister’s displeasure. He is in the difficult position of trying to defend the lack of progress that has been made in bringing in what the noble Earl, Lord Onslow, called the safeguards, which should arrive at due process. The Government could have moved the control orders regime towards that regime in the way that has been suggested before and has been spelt out again today in the Chamber, but they have failed to do that.

I fully appreciate what the Government are saying about the danger that might be posed next Tuesday if the regime is not in place, but I notice that the Minister

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did not respond at all to the questions about all the absconded terrorists. That, to my maths, is almost a third of—

Lord West of Spithead: My Lords, all I will say is that no one has absconded since I took up my post.

Baroness Miller of Chilthorne Domer: My Lords, that is very good news. The Minister gave us some of the detail of his operational experience, for which I have tremendous respect, but we are talking here about a different choice in operational terms. He knows that other choices could be made.

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