Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1 to 9) Order 2011

Baroness Neville-Jones Excerpts

Tuesday 8th March 2011 Lords Chamber

Moved By

[Baroness Neville-Jones]

That the draft order laid before the House on 3 February be approved.

Relevant documents: 15th Report from the Joint Committee on Statutory Instruments, 8th Report from the Joint Committee on Human Rights

[The Minister of State, Home Office (Baroness Neville-Jones)]

My Lords, the purpose of the order before the House today is to renew Sections 1 to 9 of the Prevention of Terrorism Act 2005 pending their repeal and replacement with an alternative regime. These sections expire after one year unless renewed by order subject to the affirmative resolution of both Houses. The effect of this order will be to maintain the control orders powers until 31 December 2011, and I emphasise that this is a limited and temporary renewal. As the Home Secretary said on 26 January in another place, this allows us to bring forward the legislation introducing a replacement system. In due course the House will obviously be able to debate the new legislation in detail.

By way of a preliminary I should like to set out the context for the proposal before the House. Sadly, I have to say that the threat to the United Kingdom from terrorism is as serious as we have faced at any time, and it remains assessed by the Joint Terrorism Analysis Centre as “severe”. Since the beginning of the year, there have been a number of major terrorist attacks that have resulted in the deaths of many innocent people. These attacks have occurred in different countries from Russia to Afghanistan to Yemen and to the Philippines, and they show that a large number of fatalities still result from terrorist attacks. This country has been well protected, but nevertheless in the UK we have witnessed a number of significant terrorist plots that have been uncovered over the past year, and recent investigations and trials show that terrorist networks are continuing to plan and to attempt to carry out attacks. The threat we face continues to evolve, and I do not think that it is going to diminish or change to any material extent in the near future. That is the background against which we have to look at the temporary legislation and the new regime.

The coalition’s commitment to redress the balance in our counterterrorism powers was made in the run-up to the election and we therefore conducted a review of the counterterrorism and security powers. That review included consideration of the necessity, effectiveness and proportionality of control orders. On behalf of the Government I thank the independent oversight given to that review by the noble Lord, and now my noble friend Lord Macdonald. The review underlined that the Government’s absolute priority is to prosecute suspected terrorists in open court and that imposing restrictions on suspected terrorists who have not been convicted in open court should be the last resort. I want to emphasise that prosecution is our objective. Where restrictions are required they should, as far as possible but given the need to protect the public, continue to support the primary objective of prosecution.

The review concluded that for the foreseeable future there is likely to continue to be a small number of people in the United Kingdom who pose a real threat to our security but who, despite our best efforts, cannot be prosecuted or, in the case of foreign nationals, deported. Our reluctant conclusion is that there will therefore continue to be a need for a mechanism to protect the public from the threat of such individuals.

Noble Lords may be aware that the noble Lord, Lord Carlile of Berriew, reached the same conclusion in his most recent and, indeed, his last independent report on control orders, and the other statutory consultees support the proposal to renew the control order powers. I should like to say to the noble Lord, Lord Carlile, and I am sure that other noble Lords will want to join me in this, that the Government thank him for his very thorough work over the past 10 years on the review process. His reports have been a model of clarity and succinctness and a great aid towards everyone’s understanding of what was at issue.

I am aware that a number of Members of this House and members of committees have said that they would have liked to have been able to see, at the time of the renewal of this order, the legislation that we are going to bring forward. I have to say that we will bring forward that legislation as soon as we can. We regard it as extremely important to get it right. We do not want to get ourselves into a position where subsequently we are reviewed and changed in our intentions through court action.

However, it is only right, as we have already done, to give the highlights of the provisions that we intend to bring forward, which mark real changes in the regime. It will provide, among other things, a two-year maximum time limit on the measures, which will clearly demonstrate that these are targeted and temporary. It will be possible to impose a further measure on an individual only if there is evidence of new terrorism-related activity after the original measure was imposed, which of course is different from the current situation. Measures will have to meet the evidential test of reasonable belief that a person is or has been involved in terrorist-related activity, and this of course is a higher threshold than the test of reasonable suspicion of such involvement, which of course exists under the current control order regime.

The police will be under a strengthened legal duty to inform the Home Secretary about their ongoing review of a person’s conduct with a view to bringing a prosecution. A more flexible overnight residence requirement will replace the current curfew arrangements. Forcible relocation to other parts of the country will be ended. Geographical boundaries will be replaced with a power to impose much more tightly defined exclusion from particular places only. There will be no power to exclude someone, for instance, from the totality of, say, a London borough. Individuals will have greater freedom of communication, which will include access to a mobile phone and to a home computer with internet access, subject to certain conditions such as providing passwords. They will have greater freedom to associate. For example, there will be no blanket restrictions on visitors or meetings. They will be prohibited only from associating with people who may facilitate terrorism-related activity. And of course they will be free to work and to study, subject again to any restrictions necessary to protect the public.

These changes will allow individuals to continue to lead a normal life as far as possible, subject only to the restrictions necessary to prevent or disrupt involvement in terrorism-related activity. We are clear that the more limited restrictions that may be imposed may indeed facilitate further investigation as well as prevent terrorism-related activities. The new regime will be accompanied by an increase in funding for the police and the Security Service to enhance their investigative capabilities. That is an absolutely key part of the new measures. We intend to bring forward legislation to this effect shortly and, as I have said, it must be properly prepared so that it may be properly scrutinised by this House. We welcome the support given by the noble Lord, Lord Carlile, to these measures and, indeed, the comments that have been made by the Joint Committee on Human Rights in its recent reports. The committee has expressed some welcome, even if perhaps only cautious, to the new system. The Government will of course reply formally to the detailed recommendations that have been made in those reports.

In the mean time, the Government are clear that it would be irresponsible to allow the current regime to lapse in the absence of alternative measures and while the investigative capabilities of the law enforcement and security agencies remain to be developed. As I say, that is a key part of the new regime. It is therefore important to underline that, for the time being, control orders should remain legally viable. While they may be imperfect, they have had some success in protecting the public and they are fully compliant with the European Convention on Human Rights.

It is sometimes asserted that controlled individuals do not know why they are subject to a control order. I remind the House that, as a result of the Law Lords judgment of June 2009 in AF and others, this is no longer the case. That judgment specified that controlled individuals must be given sufficient information about the case against them to enable them to give effective instructions to the special advocate.

Pending the introduction of the replacement to control orders, we believe that it is right, proper, proportionate and essential that these powers continue to be available in order to protect the public. As I have said, we are currently preparing the legislation to introduce the replacement system, which we will bring forward in the coming weeks. I have no doubt that noble Lords will want to give the new measures thorough scrutiny and we must have time to do that. While that process is under way, it would not be responsible for us to leave a gap in public protection. Therefore, we believe that it is right to ask the House to renew the powers for this temporary period, the alternative being a situation in which those who pose a threat to our safety could go about their activities with far too great freedom.

This is the last occasion on which the House will be asked to renew these powers. Before transition to the new regime is complete, the risk to the public would be grave indeed were the control order powers not to be renewed. I therefore ask the House to approve the renewal of the powers for the transitional period. I commend the order to the House.

[Lord Lloyd of Berwick]

My Lords, as all your Lordships know, control orders were introduced in March 2005 as an emergency measure. We in this House, after an all-night sitting which I shall never forget, insisted that the Government should have to come back after 12 months in order to justify the extraordinary powers which had been conferred on the then Home Secretary. They were indeed extraordinary powers, because they enabled him, on suspicion, to impose what amounted in effect to house arrest on an individual who had never been charged with any offence. Yet here we are, six years later, being asked to renew those very same powers yet again.

In a powerful briefing note which I am sure the Minister has read with care, Liberty describes the control order regime as being “completely discredited”. It would be difficult indeed to disagree with that view. However, Liberty is equally critical of what is now proposed in place of the control order regime, the so-called terrorism prevention and investigation measures —TPIM for short. We do not, of course, know what the Bill will contain, and it is the greatest pity that we do not have a draft of the Bill before us today. When we do get it, I hope that it will be subject to pre-legislative review.

The present indications are that the Bill will contain many of the objectionable features of the existing control order regime. Indeed, Liberty describes the new regime in its briefing note as simply control orders under a different name. Whether or not that is right is not a question for discussion today; that will be a matter for great debate when we see the Bill. No doubt the Government will then argue—as the Minister has indicated already—that there is a real difference between the Home Secretary being required to believe that a person is a terrorist and the Home Secretary being required to suspect that he is. Similarly, the Government will no doubt argue that the overnight residence requirement is much less restrictive than the curfew, which is to be abolished, and no doubt they will argue that the TPIM will allow access to the internet and much greater freedom to communicate and associate with others.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I am most grateful to the noble Baroness, Lady Neville-Jones, for introducing the order. I echo my noble friend Lord Judd in thanking our security services and police for their co-ordinated work in keeping us safe. We know that plots have been foiled recently. It is clearly our duty to provide the police and security services with the tools and procedures that they need to do their job effectively. As we have heard today and in previous debates, that sometimes means walking a very difficult line in balancing individual freedom with collective safety—the noble Lord, Lord Ahmad, put that very well—with the rights of the wider community sometimes outweighing the rights of the individual. Control orders have been the tool for that and I thought that the Minister said that they had had some success. In an ideal world we would not wish to use control orders. It would be greatly preferable if our criminal justice system could deal with terrorists who wished to cause us harm but the view was taken by the previous Government and previous Home Secretaries that control orders were a necessary evil.

The order before us provides for the continuation of the power to make a control order against an individual when the Secretary of State has reasonable grounds for suspecting that the individual is, or has been, involved in terrorism-related activity. I echo the noble Baroness’s tribute to the noble Lord, Lord Carlile, for the work that he has done. We know that eight people are subject to control orders at the moment. My understanding—perhaps the noble Baroness will confirm this—is that some of these orders have been made since the coalition Government came to power. The implication of what the Minister has said is that the Government recognise that a number of people pose a real threat to our security who cannot be prosecuted or deported. Therefore, the Government have come face to face with reality in recognising the need for a mechanism to protect the public from the threat that such individuals pose. The Sixth Report of the Independent Reviewer states clearly:

“The control orders system, or an alternative system providing equivalent and proportionate public protection, remains necessary, but only for a small number of cases where robust information is available to the effect that the individual in question presents a considerable risk to national security, and conventional prosecution is not realistic”.

It looks like the Government have gone through a steep learning curve in the past few months, but one of the results is an absurd situation whereby the order on 28-day detention was allowed to lapse without the draft emergency legislation being in place. Legislation has now been published but, as yet, we do not know when Parliament will discuss it.

A number of noble Lords referred to the report of the Joint Committee on Human Rights that examines whether Parliament should be given the opportunity to conduct pre-legislative scrutiny of the proposed emergency legislation. The noble Baroness will know that the Select Committee said that it does not accept the Government’s reasoning for not providing this opportunity and recommends that the legislation should be published and made available to Parliament for pre-legislative scrutiny. I invite the noble Baroness to comment on that specific recommendation. I also echo the point raised by my noble friend Lord Judd, who referred to the recommendation in the committee’s report that the Government should publish a summary of the views of a number of the agencies involved in counterterrorism in order to facilitate parliamentary scrutiny of the review. I accept that the report was published only a few days ago and I would not expect the Government already to be able to come to your Lordships’ House with a full response. That would be unreasonable. However, the noble Baroness should be able to say broadly whether she accepts those recommendations and can respond to them.

It is noticeable that the proposed new control order regime pays particular attention to surveillance. We are told that sufficient finance will be available to the police and security services for that resource-intensive proposal. Will new money be made available? The noble Baroness owes it to the House to inform us as to how continuation of the current control order regime will be dealt with, given the financial cuts that the police and the security services are facing. I pray in aid to the noble Baroness the report published today that details some of those cuts.

Will the noble Baroness inform the House about the impact on the capability of our counterterrorism work of the changes proposed in the Police Reform Bill that is now in the other place? That is highly relevant to this order and to what is likely to take place over the next few months. I have great reservations about the proposal to impose elected police commissioners on our police forces. I have no doubt whatever that it risks politicisation of our forces and inevitably corruption. That is a debate for another day, but I am concerned about the impact on national strategic policing issues, which are relevant to this debate.

There can be little doubt that police commissioners will be elected on manifestos that are bound to focus on local policing issues. I suspect that it will be a question of which candidate proposes more bobbies on the beat. That is fair enough, but what if these elected police commissioners neglect their national responsibilities? What if they do not make appropriate resources available for counterterrorism work? The noble Baroness speaks with great authority on this issue. Is she convinced that there will be sufficient intervention powers at a national level to ensure that elected police commissioners do not inhibit national security work in which the police have a major role to play? I assure her that we will come back to that issue.

These are not easy issues. As every noble Lord who spoke today said, we in this country have a long tradition of individual rights and freedoms. We are all very proud of that. As the noble Lord, Lord Ahmad, said, we have responsibilities for the safety and security of the public in very challenging times. It is a very difficult balance to achieve. The Official Opposition support the extension of the order this evening. We look forward to the new legislation on how we can scrutinise what happens. I hope that we will be able to reach consensus that meets the requirements of individual freedoms while keeping the safety of our country to the fore.

[Baroness Neville-Jones]

My Lords, I thank the House for the thoughtful tone of the debate that followed my opening remarks. It demonstrated, not surprisingly, that there is a range of views on these issues. There are strong principles involved and I do not resile in any way from the principled stand that I took in opposition. However, I always said—and it is still the case—that one has to measure what one does against the security needs of the country, and what one does must be consistent with those needs. It is a matter of regret that we came to the conclusion that we cannot simply revert to a situation in which we can rely on open and normal prosecution through the courts. It is much to be desired that that is where we will come to. However, after detailed examination—this was a very thorough process—we came to the reluctant conclusion that we could not dispense entirely with the measures that lie alongside the normal judicial system.

I am grateful to noble Lords for many of their remarks. Perhaps I might have wished that more recognition had been given to the differences that exist between the measures that we are proposing and those that exist at the moment. We had regard to what was said, in particular about the psychological effects of relocation; we took a view on the necessity of a very long curfew; and we did our best to create a situation in which normal life will be open to those who are under restrictions and they will be able to work. Many of them do not, but we would like those who have work to be able to do it. We are trying extremely hard not to distort the lives of those individuals who are under restrictions any more than is necessary.

There will be an opportunity for scrutiny of this legislation. That is one reason for wanting to have in place a temporary regime. I was asked about pre-legislative scrutiny. The Government have no problem with this. It is partly a question of the amount of time available to do various things. I am sure that the House will attach importance to us not continuing the existing control order regime longer than we need to. We must allow enough time for scrutiny on the Floor of the House, not only of the TPIMs but also, as the noble Lord, Lord Judd, remarked, of the emergency provisions. I take his point and put it to noble Lords that we need to be practical about how we go about giving the scrutiny that this House and the other place will want to give to this legislation. I am not saying that the Government see an obstacle to it in principle; it is simply that we have doubts about the practicality.

I was asked whether there will be new money for the extra surveillance. The answer is yes, and I shall come back to that in a moment. I was also asked whether we will give information about, or publish, the evidence given by some of the services in the process of the review. I am not going to promise that. I think it will be perfectly understandable to Members of this House why it is necessary to keep the confidence of the security services, in particular, but also the police in this matter. We will do our best to—

[Lord Hunt of Kings Heath]

The Select Committee’s report came out only a few days ago. Is that a considered response in the light of the report? I entirely understand the point that she is making but I wonder whether the Government need to give a little more time to that.

[Baroness Neville-Jones]

As I said, I am not going to make that promise. I was about to add a sentence when the noble Lord rose. We will take this under advisement and see whether we can give some kind of summary, but if the noble Lord does not mind, I do not want to give a totally definitive answer to that point this evening.

I was asked a number of detailed points and I shall try, without detaining the House for too long, to go through some of them. Right at the beginning, the noble and learned Lord, Lord Lloyd, asked a number of questions which I think bear on points made subsequently in debate. The implication of his remarks was: would we honour seriously what we have said about the importance of continuing to seek prosecutions? I have three things to say about that. One is that the CORG which he mentioned will conduct serious work. I think that it has always been a serious body but the Government are going to make absolutely certain that the conduct of the CORG—the review body that keeps these cases under continuous and pretty close scrutiny—is serious. We have, I hope, created a situation in which there will be greater possibilities for prosecution. I stress to the House that I think it is only fair to say that the primary purpose of these measures is still protective. Nevertheless, within the scope that is offered, we will certainly be looking at the possibility of continuing and bringing prosecutions. Indeed, the operation of the TPIMs themselves may allow that to happen.

I was also asked why, if we believe that the control orders are imperfect—as, indeed, I said myself—we do not abolish them straightaway. I was asked whether it would not be right to do just that. I remind the House of the condition which is very important to our ability to move to a looser regime, and that is the surveillance that needs to be put in place in order to provide the public with the necessary security. That surveillance does not exist at the moment. Individuals have to be recruited; people have to be trained; and we have to have extra capacity and capability in that area, which we do not have at the moment. I do not think it is reasonable to say that you should be able to abolish the existing regime for the individuals who are currently under control orders in the absence of the necessary conditions for a new regime. Having said that, clearly the current control orders come up for regular review. We shall be reviewing them and of course we will be looking at individuals’ cases in the light of their situations. As I have said, there is clearly a transition to be undertaken. I do not think that I can go further than that at the moment. I understand perfectly well the point that has been made but I hope that noble Lords will also understand the constraints that we are under in moving quickly from one regime to another.

[Baroness Kennedy of The Shaws]

My Lords, perhaps I can deal with the issue of moving people to places like Leicester or up to Norfolk and so on. We have decided that that is abhorrent and that it will not be sought by the Home Secretary. Therefore, can we not now bring back from exile the people who have been put on those orders?

[Baroness Neville-Jones]

When the circumstances are in place and we have the necessary surveillance and protection for the public, we will be able to do so. First we must put in place the conditions that will enable us to operate the new regime.

The noble Lord, Lord Judd, is absolutely right to say, as I should have said, that the Government are extremely pleased that the Joint Committee on Human Rights has welcomed the change. He will also have observed that I did not miss the fact that there were some qualifications in the views expressed by the committee. We shall certainly take those seriously. In particular, he mentioned the unhappiness about the conditions under which special advocates have to operate. In the report there are one or two instances of the special advocates’ conditions of work being eased. It is a big issue and it goes wider than control orders. That will be taken up and examined, and part of the Green Paper that the Government are to bring forward will be devoted to the use of special advocates and the conditions under which they should be able to work for their clients.

I would like to reiterate my thanks to the noble Lord, Lord Macdonald. He did us the honour of saying that he felt that the process had been an honest and thorough one. I am extremely grateful for that, as it is valuable to have that endorsement. I have to be honest and say that there is some light between us on the balance to be struck between protection and prosecution. That is an issue that we shall want to explore further in debate. We entirely agree with him about the supremacy of due process and I do not deny at all that the control order regime inhibits prosecution. We are trying to strike a balance that will enable us to have greater emphasis on the prosecution side of things. However, I cannot conceal from the House that the protective element in the TPIMs is a primary objective.

I believe that I have covered most points. One noble Lord mentioned the role of the reviewer. We now have a new statutory reviewer and, having met him, I have total confidence that he will do an extremely thorough and careful job. I think that he will be a safeguard against the danger to which the noble Lord, Lord Macdonald, pointed—the difference that turns out to be not a difference but a continuation of the existing situation. I do not believe that that is the Government’s intention or the effect of implementation, but there will be that safeguard. He will also report on individual cases. It is right that we should leave that role to him; I do not want to do that role myself.

I hope that I have covered the main points raised in the debate. Perhaps not surprisingly, the noble Lord opposite tried to get me on to the effect of the police reform Bill. I remind him that the budget for counterterrorism is protected. There will be more information about the whole role of the National Crime Agency. I assure him that the national functions of the police will be just as protected as our desire to ensure that the accountability to local authorities on the part of the police and crime commissioners is also a feature of modern policing.

Given the prospect of scrutinising the new regime with the thoroughness that I know this House will wish to apply, and with the clarification that I have been able to give, I hope the House will agree that the order can be renewed, and I commend it to the House.

Motion agreed.