| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
We should not be behaving like this. It is a disgrace, as the country that invented the rule of law-that invented Magna Carta. Let us remember that Magna Carta was not new law; it is what they persuaded the King to say was the ancient law of England. That is what I find so moving about this country: that we go in for the rule of law. Unfortunately, for the past 13 years or so, there have been some rather shoddy little bits of legislation-not only this one, but others-which have taken away from that great standard.
The noble and learned Lord, Lord Hope of Craighead, the deputy president, said:
"The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him".
I turn to the JCHR report; I have the privilege to be on the committee. The report was solidly unanimous in its acceptance. We were all shocked by some of the witness statements that we heard. I will start with where we considered what the noble and learned Lord, Lord Lloyd, talked about, which can best be described as "internal exile". I think that it was the noble Baroness, Lady Kennedy, who used that expression when representing someone, and did so quite deliberately. That is what Tsar Nicolas I did to the Decembrists: they were sent to Siberia for 30 years. I accept that if you are sent from Bradford to Chipping Sodbury, Chipping Sodbury is not exactly a salt mine to the north of the Arctic Circle, but it is the same principle, and a principle that is abhorrent to any of us who care about the liberties of the subject, as I do. The damage to children and wives and the unfairness of the whole principle has been referred to.
I turn to special advocates. The rules have been changed a little, but special advocates continue to have no access in practice to evidence or expertise that will enable challenge to the expert assessment of the security services. Someone cannot challenge the evidence that is against them properly and, above all, the special advocates have no means of gainsaying the Government's assessment that disclosure would cause harm to the public interest. Late disclosure also means that they cannot address the case properly. I think that it was said that someone applied for release to attend a course, but by the time that the okay came through, the course had finished.
It gets worse and worse. We state in the report:
"By seriously hampering special advocates in their performance of the role they are intended to perform, it creates the risk of serious miscarriages of justice. The inability of special advocates to communicate with the controlee after seeing the closed material, identified as a source of unfairness by the Constitutional Affairs Committee in 2005, remains unchanged, notwithstanding the clear evidence that it seriously affects the special advocates' ability".
3 Mar 2010 : Column 1536
The committee considered whether the whole order regime could be made to operate in a way compatible. We said that we had maintained an open mind until now, but that:
"Our assessment now, in the light of five years' experience of the operation of the system, is that the current regime is not capable of ensuring the substantial measure of procedural justice that is required. In short, it cannot be operated fairly without fundamental reforms which have so far been resisted".
I could go on citing chunks of the report and trying to précis it, but I think that most of your Lordships have read it. It is an excellent report; it is one that we all felt strongly about; and it concludes by stating:
"For a combination of these reasons, together with serious reservations about the practical value of control orders in disrupting terrorism compared to other means of achieving the same end, we have reached the clear view that the system of control orders is no longer sustainable".
The cash has been talked about-the cost of lawyers. To end on a marginally flippant note, I would much rather that the cash went to Plod than to my learned friends, and that there was surveillance rather than keeping lawyers in good claret or villas in the south of France. If there is a vote, I will disobey my Front Bench and vote with the noble Baroness, Lady Hamwee.
Lord Scott of Foscote: My Lords, I declare an interest as a member of the Appellate Committee that heard the case at the end of 2004 of those who were subject to indefinite detention in Belmarsh. The conclusion was that the Act-I think it was the 2001 Act-that provided for that indefinite detention was unlawful in that it was contrary to the guarantees given by Article 5 of the convention on the right to liberty, unless that had been detracted from by an appropriate court process, which had not been the case. That decision led to the 2005 Act, under which the control order regime was put in place as a substitute for the Belmarsh indefinite detention regime. That came under challenge and led eventually to the decision of the Appellate Committee in AF. I again declare an interest as a member of that committee as well.
The Belmarsh case had been concerned with Article 5 on deprivation of liberty; the AF case was concerned with Article 6 on absence of a fair trial. Those who had been subjected to the control orders, who had appealed, had had their rights and obligations in the society in which they lived seriously prejudiced; that was the purpose of the control orders. That had been done, as the Appellate Committee found, without there having been a fair trial because it had not been possible for the lawyers representing the controlees to be informed of the gist of the case against their clients. As they could not be informed of the gist of the case against their clients, they could not resist the thrust of the allegations made against them. How could that be a fair trial? The answer was that it could not, and that was the decision.
That remains the position in relation to control orders. Unless the gist of the case against the person who is sought to be or has been made subject to the control order can be disclosed, he cannot be given a fair trial because he cannot be given a proper opportunity of showing that the case against him is false or unsound. The balance of probabilities, to which the noble Lord,
3 Mar 2010 : Column 1537
The legal basis for legislating inconsistently with the convention is made quite clear by the Human Rights Act 1998. It is open to Parliament to legislate inconsistently with the convention; Parliament may do that. However, the courts are instructed by the Act to try, so far as is possible, to read down legislation which appears to be inconsistent with convention rights so as to render it consistent. If the courts can do that, they will do that. They did it in the case of MB when the control order legislation was read down, as your Lordships will remember. If that cannot be done, the legislation-inconsistent though it be with convention rights-is valid and effective and must be, and will be, implemented by the courts. Parliament can make clear its intention that the restrictions, whatever they may be, made possible by the legislation are intended to be effective notwithstanding that they may be inconsistent with convention rights. If Parliament makes that clear, the courts must accept it and apply the legislation.
However, a Government who introduce legislation of that character and obtain its passage through Parliament are in breach of their obligations under the convention to abide by the convention. The convention provides a let-out in Article 15, which states that in a time of national emergency-I cannot quote the exact words, but this is the gist of it-the state in question may take such steps as are necessary to deal with the national emergency. That argument was run in the Belmarsh case. It did not succeed because the Appellate Committee was not satisfied that the indefinite detention which was provided for by the relevant Act was necessary; alternatives could have been, but had not been, considered and tried. But there it is: that is the convention outlet.
9 pm
In the 1998 Act the outlet is even clearer. Section 14 makes it clear that Parliament can legislate inconsistently with the Act. The Minister who promotes the legislation must then make a declaration of incompatibility. The position is clear. The courts will then give effect to that legislation on that footing. The obligation of public authorities not to act unlawfully by acting in breach of convention rights does not apply to Parliament. That, too, is made expressly clear by the Act.
The position, therefore, is that if the Government really think it is necessary-using that word, "strictly"-to curtail the right to a fair trial of those of whom there is reasonable suspicion of being engaged in or sympathetic to terrorist activities, they can legislate accordingly and make a declaration of incompatibility. However, if they do that they must accept the opprobrium that would undoubtedly be cast on them from some quarters for having legislated inconsistently with the convention. If the Government do not do that-and they have not, which is understandable-they must accept that they cannot simply introduce legislation and expect the courts to enforce it if there is no provision for a fair trial. That is the position here. If at least the gist of the case against the proposed controlee cannot be given, that controlee will not have been afforded a fair trial.
3 Mar 2010 : Column 1538
Paragraph 62 of the report of the Joint Committee on Human Rights refers to the approach of the prosecuting authorities-and therefore, I guess, the Government-to the disclosure of information to the special advocates. This, according to paragraph 62, is dealt with on a class basis. It is dealt with on the footing that if the information falls into a particular class it will, ipso facto, not be disclosed. That was a line that used to be taken in relation to public interest immunity certificates in ordinary civil and criminal litigation. If one party in a civil case, or the prosecuting authority in a criminal case, had information in their possession which the other party-or defendant as the case might be-thought might assist his case, disclosure would be sought. If the information fell within a particular class, regardless of its content, disclosure would be refused. The consequence of that was that in several cases appropriate information that might have been afforded to the defence and changed the result of the case was not disclosed.
That changed in the late-1990s and early-2000s. All these claims for immunity from disclosure had to be dealt with on the basis of contents. If the content could be disclosed without damaging national interests, it had to be disclosed, whatever class it fell into. Now one finds, in paragraph 62 of the Joint Committee report, that in these control order cases the disclosure of information is being refused on the grounds that the information falls into a class that requires disclosure to be refused. That will not do. It is, I suggest, an indication that a great deal more can be disclosed than has been the practice in the past. The Joint Committee makes that clear, and it requires some thought to be given to whether instruction should be given for the disclosure obligation to be undertaken on the basis of content, not of class. Unless that is done, these trials will continue to be unfair; they will continue to be a breach of the Article 6 entitlement to a fair hearing; and there will continue to be reversals of these control orders in the courts. Subject to assurances on such points from the Minister, I would support the amendment of the noble Baroness, Lady Hamwee, and that of my noble and learned friend Lord Lloyd.
Lord West of Spithead: My Lords, first, I thank all noble Lords for their contributions to this debate. The noble Baroness, Lady Hamwee, was absolutely right: when I came into post some two and a half years ago I did not like control orders at all, for some of the reasons that noble Lords have given. I was very concerned about them. I wanted to be absolutely sure that they were needed because they were not an attractive option to me. I sent the Security Service, SO15 and the Office for Security and Counter-Terrorism away to look at this in great detail to make me believe that they were right. I thought that they would not be able to prove it. They came back to me, and it took them some months. It was quite clear at the end of that that the costs-not just money costs, but resource costs-were going to be dramatically higher to give the same surety of security. Indeed, it was probably almost impossible to give that surety of security in a number of cases. Therefore, I reluctantly accepted that these orders should continue.
What do I mean by the surety and the ability to ensure that these people could not be engaged in terrorism? Reference has been made to people being
3 Mar 2010 : Column 1539
I think that the noble Earl, Lord Onslow, mentioned people being sent to Siberia. Certainly, we have preferred not to leave some people in Bethnal Green, Hackney or somewhere like that and we have sent them to Gloucestershire. That is not quite as bad as Siberia, although I know that Gloucestershire can be quite bad sometimes. It means that one is able to monitor them a lot more carefully. What are we trying to do with these people? We are trying to make our nation safer. We do not pluck these 11 people from the top of a bus somewhere; we have reason to have these 11 people there. We believe that they are involved in terrorism. Those things are sometimes very difficult to disclose.
The noble Baroness asked who looked at the detail of each of these cases. I certainly sit down and look at the proposal for a control order. Light touch was mentioned. I do not particularly like some of the light-touch measures because I believe that the only people who should be subject to control orders are those who pose a real and serious danger. I sit and go through the orders. There is normally a supporting document much bigger than the one before me of Security Service intelligence, SIS and other intelligence, which I go through. It takes a long time and I put a lot of effort into doing that. I then forward it to the Home Secretary, who I am sure puts just as much effort into it. It is an exhaustive look. I had a full head of dark hair and no bags under my eyes when I started, but these things take a lot of effort, so we do take them extremely seriously. As I say, these cases are reviewed properly. It is not a question purely of money costs but also of resource capability. Although we have doubled the size of the Security Service and increased the size of SO15 by 70 per cent, we are still quite tight on resources. There are a lot of plots and concerns, and to cover them properly is extremely difficult. That is an important issue.
As I say, we do not pluck these 11 people off the top of a bus. We do not say, "Let us pick those up and have a look at them". These are people about whom we have serious concerns and an awful lot of intelligence. But as we know, intelligence is not evidence. It is not fair to say that we then just apply things to them. A judge has to agree that there is reasonable suspicion of involvement in terrorism-related activity, and that the order and its constituent obligations are necessary. A judge looks at this, so as well as me looking at it and the Home Secretary looking at it, a judge looks at all this detail as well.
A number of speakers mentioned people absconding. I think that the noble Earl, Lord Onslow, mentioned someone who had absconded and said that someone had made a statement some time ago about him no longer being a threat. I do not know about that. All I would say is that since I came into post not a single person has absconded.
3 Mar 2010 : Column 1540
The Earl of Onslow: It was in fact a Home Office Minister who made that statement. That is why it is so bizarre that they were dangerous while locked up but not dangerous when they had absconded.
Lord West of Spithead: My Lords, as I said, I am not aware of that. I would only say that not a single person has absconded since I have been in my post. I suppose one could argue that, once they have left the country, they are not such a direct threat to people in this country, but I would suggest that they are a threat globally and that they could be a threat to our forces in various countries.
The noble Baroness, Lady Hamwee, also asked-
Lord Lloyd of Berwick: My Lords, I am grateful to the noble Lord for giving way. Could he not deal with the noble Earl's point about the seven who absconded, admittedly before the noble Lord's time, and the point that I made in relation to AF? A year ago, they were regarded as highly dangerous; today, AF is at large. Is the risk being contained or not? If it is, why can it not be contained in relation to the other 11 controlees?
Lord West of Spithead: My Lords, I am afraid that I cannot give an answer on the seven who absconded before my time in post. I do not know what statement was made on that. I do not know which country they went to or what happened to them. I do not know the details. They may well be in prison somewhere else; I just do not know.
As regards AF, we have never accepted that a control order is not necessary; we still think that it is. I do not think that anyone here would expect me to go into the detail of what we are doing to make sure that we are secure.
Lord West of Spithead: I do not think that I should go into the detail of what we are doing about this. I would not go into the detail of the approximately 2,000 people whom we are monitoring in certain ways. They are not as dangerous as the ones under control orders but we still believe that they need to be monitored, watched and checked in many ways. I would not dream of mentioning that on the Floor of the House and I do not believe that I should. It would put certain things at risk and would mean that those people would be able to get round the surveillance. Therefore, as I said, I do not accept that AF should not have been under a control order, and we have to be very careful about what we say in covering it. If all 11 people under control orders were out, that would take a lot of resource and I do not believe that we would be as safe as we are. That is why I am concerned.
The noble Baroness, Lady Hamwee, asked what changes to the rules the Government will make to ensure that the House of Lords judgment in the case of AF and Others is fully implemented. We do not believe that any changes are necessary and the House of Lords did not suggest that any rule changes are needed. This includes in relation to the special advocate talking to controlees after the service of closed material. The courts already ensure that hearings comply with the right to a fair trial.
3 Mar 2010 : Column 1541
The noble Baroness also talked about the impact of some of these measures on a controlled individual and his family. It is true that some of these measures are very severe. In my opening speech I touched on the fact that we take the impact on physical and mental health very seriously. I also touched on how we deal with local communities and how we review the situation constantly to make sure that controlees are all right. However, these are people whom we assess to be highly dangerous for our nation, and it is right that we put in place measures to try to ensure that we are safe. As I said, it is not something that one wants to do but it is right that we do it. However, we look very carefully at these very specific issues to make sure that these people are looked after.
I know that the noble and learned Lord, Lord Lloyd, accepts that our preferred approach in dealing with terrorists is prosecution. All of us here would like to carry out a full prosecution. However, it is not always easy to achieve that because intelligence and evidence are very different. I disagree with his suggestion that the control order regime is unjust. Control orders are subject to numerous checks and balances-importantly, including judicial oversight in every case. That judicial oversight explicitly involves ensuring that control orders and control order proceedings are compliant with the European Convention on Human Rights, including the right to a fair trial, which is now considered in the light of AF and Others. Moreover, the High Court has upheld four control orders since the House of Lords judgment following proceedings that were compliant with Article 6 tests laid down in AF and Others.
The noble and learned Lord, Lord Lloyd, said that the regime is ineffective. I dispute that; I do not believe that it is. I would not have left it in place if it were ineffective. I agree that it is not perfect but it is largely effective.
The noble and learned Lord also referred to a number of countries in Europe and perhaps elsewhere that are shining lights as regards not keeping people locked up. I can only say that when I speak to my opposite numbers in some of these countries, I am constantly amazed at how they seem able to bang people up for amazingly long times without what I would call a normal trial. That might be because of their different systems but we are by no means bad boys in that area.
On the length of sentences, we have national security concerns about imposing arbitrary end-date control orders, which the noble and learned Lord, Lord Lloyd, mentioned, regardless of the risk posed by an individual. Our position is that orders should be imposed for as short a time as possible commensurate with the risk that they pose. I know that the noble and learned Lord may disagree but the High Court has supported our view. The statutory test in control order legislation already ensures that the Government can lawfully renew a control order only if it is necessary to do so, and that any decision by the Secretary of State can be appealed by the controlled person. The High Court must decide whether the test has been met. I have touched on AF, the other point raised by the noble and learned Lord.
3 Mar 2010 : Column 1542
The noble Baroness, Lady Neville-Jones, talked about effectiveness. I hope that I have shown that control orders are effective. Our assessment is that they are. The noble Lord, Lord Carlile, assesses them as effective, as does the head of the security service. We have seen the results in terms of stopping individuals being involved in terrorist activity, contacting people with whom they work and doing certain things on whichever system they are using. The internet was mentioned, which is used for radicalisation and other things. That is why there are restrictions. I agree that it may not be nice for the youngster in the family but our aim is to protect the public. These people are not little innocents pulled off a bus; they are people on whom we have considerable intelligence as being a risk to our population.
The noble Baroness, Lady Neville-Jones, talked about security and wanted a brief about that. I do not think that we can keep on updating. In the CONTEST 2 strategy last year we gave a clear exposition of the threat and we are now looking at it a year on. We will be saying where we are on that in the near future.
The threat level is not a ministerial decision for good reasons. It is a decision for the Joint Terrorism Analysis Centre and it would be wrong to go through the reasoning on why that is being raised. I note and was pleased to hear that the noble Baroness is willing to listen to an informed person. I thought for one glorious moment that it would be me, but it was the noble Lord, Lord Carlile. Never mind.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |