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

Lord Judd Excerpts

Tuesday 8th March 2011 Lords Chamber

I hope that the noble Baroness will take the points that I have made back to the Secretary of State and let us know in due course whether there is not something that can be done now in anticipation of what will be in the Bill.

[Lord Judd]

My Lords, we all recognise that this is an immensely difficult issue. Before I say anything about it, I take this opportunity to yet again express, without qualification, my admiration for Ministers, the security services and the police in the heavy responsibilities they carry on our behalf in protecting society. I hope that anything I say today will be seen in the context of that sincere recognition of what is being done on our behalf and will be constructive.

The Minister referred to the Joint Committee on Human Rights and I shall concentrate on its report. She said that there will be a government reply to the Joint Committee. However, the Joint Committee serves and reports to us and it is not satisfactory for us to consider the report in the absence of the detailed ministerial response to it, because we ought to be able to take that into account in evaluating the observations of the Joint Committee. I pay tribute to the hard work which is done consistently by the committee on these matters.

Without any observations of my own, I shall concentrate on highlighting what the Joint Committee has said. I thought the Minister was a little ungenerous in her comment on its comment. I read as quite positive its remark that,

“we welcome the Government’s commitment to repealing the control order regime and its renewed commitment to the priority of criminal prosecution”.

Those are splendid words from a committee which is not renowned for making observations of that kind and I endorse them wholeheartedly.

The report then, of course, introduces the word “however” and questions,

“whether the renewal of the control order regime through the draft Order is consistent with the recommendations of the Government’s Review of Counter-Terrorism and Security Powers”.

In the committee’s view,

“the Government should urgently review all existing control orders to ensure they are compatible with the findings of the Review of Counter-Terrorism and Security Powers. Where the Review found that certain requirements cannot be justified because they are too intrusive, those obligations in existing control orders should be removed or reduced so as to be no greater than those which will be permissible under the proposed Terrorism Prevention and Investigation Measures regime. This should also apply to any new control orders made under the existing regime if it is renewed”.

The Joint Committee then goes on to make some specific recommendations. The Government should explain to us—in this debate, presumably—

“why it is considered justifiable to maintain control orders on individuals for more than two years in the absence of any new evidence of their involvement in terrorism and whether TPIMs will be imposed on persons already subject to control orders for two years”.

It also recommends that:

“The Director of Public Prosecutions should be asked to consider whether a criminal investigation is justified in relation to each of the eight individuals subject to existing control orders and whether, in each case, everything possible is being done to investigate and gather evidence with a view to such prosecution”.

The committee then makes a very important point about which I am quite concerned. Until a few years ago I was a member of this committee and I remember coming up against it even then. It recommends that:

“The Minister should meet with representatives of the special advocates to discuss their continuing concerns about the fairness of the special advocates system”.

This troubles me because, when I was on the committee, the special advocates shared their concerns with us. They said it was very stressful being expected to operate in a way which was quite alien to their professional training and the way in which they normally would expect to conduct themselves in court and in the fulfilment of their professional responsibilities.

This brings me to why these matters are so important not only in terms of abstract principle but in practical terms. First, we say that we are protecting society with all these measures, but what are we protecting? Our system of law is absolutely crucial to what makes Britain a society worth defending, and I am always anxious that, inadvertently, over a long period of time, we are eroding the quality of that law and undermining the professional commitment of the people within it by what they are expected to do with the special arrangements in place.

Secondly, we are, in a sense, in this dreadful ongoing challenge that confronts us, also involved in psychological warfare. In psychological warfare, highly manipulative extremists are always looking for opportunities to exploit doubts or misgivings. Therefore, our ability to demonstrate that we are doing things transparently and keeping within the law as it has always operated in this country is terribly important to winning the battle for the minds of people. This gives poignancy to the recommendations of the Joint Committee.

The Minister referred to her commitment to pre-legislative scrutiny before the new arrangements are brought into play. I am glad that she did so because there is evidently a misunderstanding. In its report, the Joint Committee draws attention to the fact that, in giving evidence, the Minister did not seem to suggest that pre-legislative scrutiny would be appropriate. To have that reassurance from her tonight—I would be grateful if she could underline it in anything she says later—is important.

Another point on the findings of the Joint Committee which should be emphasised is that it also recommends that,

“the Government publish a summary of the views of the Crown Prosecution Service, the police, the security and intelligence agencies and Government departments on the Review of Counter-Terrorism and Security Powers, to facilitate parliamentary scrutiny of the Review; and a summary of the views of the Director of Public Prosecutions and the Director-General of the Security Service about the proposed renewal of the control order regime”.

I do not want us ever inadvertently to give a victory to the extremists and terrorists. If we are not to do so, a resolute commitment to transparent justice—to people knowing why they are being held and the reasons for it—is absolutely essential. If we are not doing that, then all kinds of genuinely concerned, not sceptical or cynical, young people—and not only young people—in society will be very anxious and will not be full-heartedly behind the Government in the responsibilities that they are trying to discharge on our behalf.

--- Later in debate ---

[Baroness Hamwee]

My Lords, the Minister started by giving the context for this order; my personal context falls into two parts. Like the noble Lord, Lord Ahmad of Wimbledon, the events of 7 July 2005 had an enormous impact on me personally, as much as on anyone who was not actually on one of the tube trains or on the bus. In addition, I am hugely aware of the capacity for restrictive measures to act as a recruiting sergeant for actions that seek to achieve destabilisation and that rack up calls for more measures that are contrary to our democratic principles. I have said that because I do not want what I will go on to say to be thought of as being a sort of hearts-and-flowers approach.

The points made in the report done by my noble friend Lord Macdonald of River Glaven and in the recent report by the Joint Committee on Human Rights are issues that I hope the Government take on board in the next stage of dealing with these matters. I hope that both reports will feed into the final design of the measures. Like others, I will not attempt to cover all the ground tonight, but I will make a number of points on which I personally feel particularly strongly.

Respecting the principles of the rule of law and, to the greatest extent possible, applying the normal principles and processes of the criminal law and the criminal justice system are to me, as to other noble Lords, fundamental and indeed essential. I mention simply these requirements: due process within the criminal justice system; judicial, not executive, action; special advocates—the noble Lord, Lord Judd, talked of how what they are required to do is alien to their professional training, but I suspect that it is alien to their instincts as well; the role of the DPP; and that the new measures should be a point on a road to prosecution rather than an end in themselves, which the Minister this evening has confirmed is the objective.

On the issue of curfew, as my noble friend’s report recommends—I will put it more crudely than he did—giving those who are suspected of terrorist activity enough rope to hang themselves is in itself very persuasive, quite apart from the other issues. On the objections to curfews, both in principle and in practice, I have to say that I have never been persuaded that ordering someone to stay at home for up to 16 hours a day would deter him if he was determined to commit terrorist actions. Like others, I am pleased to hear that relocations are to cease. Can the Minister tell us any more about that? A residence requirement, which I hope will mean a requirement just to have a normal residential address, is not a curfew and I hope that such a requirement will not come anywhere near being a curfew.

It is important that, as far as possible, the new measures allow the person subject to them, and, importantly, his family, to get on with life. I have read comments by someone who was subject to a control order saying that the arrangements for signing in at a police station could not have precluded work or study more, and that they made normal life completely impossible. Points have been made around the House about the Government reviewing the current orders now and relaxing the regime to one that they have already decided is appropriate. The noble Baroness, Lady Afshar, asked the Minister whether it is the case that a young man and his family have been relocated in only the past few days.

In evidence to the JCHR the Minister argued that, despite there being lower numbers of controlees compared with the past, resources for surveillance are not currently adequate to reduce numbers to the level that several noble Lords have described. That may be something that the independent reviewer will be able to consider. No doubt there will be a review before we get to the end of this process. Like others, I hope that there is wide consultation on the legislation and the draft emergency legislation, which the Government propose to create and keep on the stocks in case it is needed. Confining consultation on that to the Opposition on Privy Council terms would not garner the expertise that is available to the Government.

[Lord Judd]

On one point that the noble Baroness has made, would she not agree with me that the special emergency measures are absolutely a priority for scrutiny because of their very nature? The way that they will be used in an emergency means that it is terribly important that Parliament should look at them thoroughly and think through in advance what their implications will be.

[Baroness Hamwee]

I almost always agree with the noble Lord; I certainly do on this point. If they are to be introduced as a matter of urgency—no doubt in a climate in which calm judgment will be difficult—that in itself argues for calmer judgment at an earlier point.

The current system is hardly perfect. I recently met someone who had been controlled, although the control order had been quashed. He said that all he understood of the reasons for the order was that he had been assessed as having been trained in countersurveillance. What techniques did he have? He was on the top deck of a bus with his son and turned his back on the CCTV camera. The Minister has anticipated this, but I have recounted the tale because it is part of what we are considering. It indicates how we need to move forward. The controlee does not want his name to be mentioned. I found his story and the comments of Dr Michael Korzinski—the psychologist and clinical director of the Helen Bamber Foundation, whose client he was—profoundly affecting. He talked about the practical, legal, health, emotional and relationship issues and the impact on his family. Dr Korzinski talked about how social isolation, ostracism and stigma affect the brain, saying that his client “was essentially driven mad”. I understand from him that there has been no mechanism for oversight or review of the impact of the orders on the mental and physical health of the individuals and their families. People who have been seen at the Helen Bamber Foundation have developed serious mental health problems as a direct consequence of control orders.

It occurs to me that the role of the independent reviewer, with access to an expert panel of mental health and other relevant professionals, could be extended to ensure proper monitoring and review in this regard as well as others. We must be very careful how we treat individuals and how—here I think that I echo the noble Lord, Lord Judd, almost word for word—we protect our society from becoming a society which we as citizens would not in our turn wish to support.