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

Lord Lloyd of Berwick Excerpts

Tuesday 8th March 2011 Lords Chamber

[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.