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

Lord Macdonald of River Glaven Excerpts

Tuesday 8th March 2011 Lords Chamber

[Lord Macdonald of River Glaven]

My Lords, I declare an interest as the independent overseer of the review of counterterrorism and security powers. Like the Joint Committee on Human Rights in its recently published report, I strongly welcome the Government’s conclusion that the current control order regime can and should be repealed, consistent with public safety. It is obviously essential that it is replaced with something that is very different in character and not simply a pale imitation. We shall have to look closely at the legislation that comes forward to ensure that that is not what the Government have in mind. The review has clearly shown that the present regime is inefficient, grants excessive power to the Government, and undermines traditional British norms and respect for the rule of law. This may not be surprising. It was introduced by accident, following a series of court judgments adverse to the last Government. It has been a bad mistake.

I also strongly welcome the Government’s renewed and strengthened commitment, expressed in their response to the review, to the absolute priority of criminal prosecution. Where people are involved in terrorism they must be detected with all the considerable power at the disposal of the state, then prosecuted and locked up. It is not just public confidence that demands this but also our traditional common-law attachment to the supremacy of due process in criminal justice and our courts. The fact is that the evidence gathered by the review has made it clear that the present control order regime acts as a fundamental impediment to prosecution. This is because the restrictions placed upon controlees forbid the very contact and activity that, under proper surveillance and investigation, lead to evidence fit for prosecution. It is also because far too many controlees are simply warehoused under the supervision of the security services, beyond the scrutiny of criminal investigation, and therefore beyond any real possibility of prosecution.

For good reasons, the instincts of the security services are protective rather than prosecutorial in nature but this practice, and the Security Service’s primacy within it, means that some serious terrorist activity remains completely unpunished by criminal law. This is a serious and continuing failure of public policy. Any new scheme introduced by the Government must not replicate this failure. To give reality to the primacy of prosecution, which is the Government’s stated aim, it should clearly become an intrinsic part of any new regime that restrictions placed upon individuals should be linked to a continuing criminal investigation. After all, if the Home Secretary, under the new regime, is to go to the High Court to assert her belief that an individual is involved in acts of terrorism so that she may obtain an order placing restrictions upon that person, it would be quite absurd for there to be no active criminal investigation into the individual in question attendant upon the Home Secretary’s application. Yet that is the position that we are in at the moment.

Of course, if there were always such an investigation in progress, court-approved restrictions mandated for the duration of that investigation, up to a maximum period of two years, would become much more constitutionally acceptable—a form of pre-charge bail. I have no doubt that such a reform would garner broad support for the Government’s new regime, including among those most bitterly critical of the current arrangements. This reform would encourage evidence gathering and therefore increase the likelihood of prosecution. It would bring the new regime much closer to criminal justice, which is an obvious good in itself with all the protections that criminal justice implies for suspects. The Government should urgently reconsider their preliminary view on this issue which, frankly, has been hostile.

Again frankly, any Security Service opposition to intense police activity around controlees should not be a trump card. The public interest is wider than the instincts of the Security Service. In fact, the trump card should always be found in locking up those people who want to wreak violence upon our communities and putting them in prison cells for long, long years. This is the true deterrent and it is also the process that truly protects the public in a way that control orders never have.

There is a separate issue. A further conclusion of the review was that relocation—the practice under which people were forced to move to other parts of the country away from home, family and friends—should be abolished, and that long curfews should go. These were among the most bitterly resented aspects of the old regime and for good reason. They were also the most offensive to our traditional norms, imposed as they were without prosecution let alone conviction, and without the controlees being told any more than the mere gist of the allegations against them. Whoever would have thought that in Britain we would have a form of internal exile without prosecution or conviction?

The Government have now agreed that these provisions are excessive, disproportionate and, unnecessary—and I would add offensive. We do not need them, as the Government have now determined. They intend to abolish relocation and long curfews under their new regime. In those circumstances, they should do so now. How can it be right for this House to be invited to extend powers that the Government themselves have conceded are wrong in principle and excessive in practice, particularly when those powers impact so vividly upon civil liberties? I invite my noble friend to consider a way to proceed that does not include renewal of these quite excessive and, as we now know, unnecessary intrusions. Those subjected to them should not have to labour under these oppressive measures any longer. There can be no conceivable public interest in obliging them to do so when the measures themselves are serving no useful purpose.

Finally, it will be critical for this House and the other place to examine with great care the legislative proposals that come forward. It is always tempting for the bad old stuff to slip back into a piece of draft legislation. We must not end up in the position of approving a system later this year or early next year which is a form, as some people have put it, of “control order light”. We need real reform in this area. If there are to be restrictions, they must be coterminous with criminal investigation. There must be no restrictions which destroy the ability of the state to obtain evidence against people who might have been involved in terrorism, which is precisely the effect of the present regime. It has failed and must stop.

[Baroness Kennedy of The Shaws]

My Lords, I will be brief. First, I suspect I am one of few people in the House who has been involved in some of these cases in the courts. I have seen them at close quarters.

Many noble Lords will also remember that I was one of those on the Labour Benches who strongly opposed the Labour Government introducing control orders. I opposed them then and ever since. I welcomed the fact that noble Lords on the other side of the House, whose faces are familiar, all went through the Lobbies with me opposing control orders. Now they are sitting in government and I want to remind them of the principled stand that they all took on control orders. It is easy, once in government, to hear poured into their ears the position taken by the security services that somehow this is the only way forward. With regard to the issue of dealing with persons suspected of links with terrorism where it would be difficult to bring them to trial, I have always advocated that surveillance, the use of intercept and so on can be done, but without interfering with liberty in the excessive way that control orders have meant. I am saddened and disappointed that the siren voices of the security services have persuaded the Government that something not very different from control orders should be the way forward. I am sure that I will be one of the people who take part in the debates when the legislation is presented to this House, and I will rigorously test some of the suggestions that have been made.

I strongly support what has been said by the noble and learned Lord, Lord Lloyd, and indeed the noble Lord, Lord Macdonald: given the principled position that the Government are going to do away with control orders, and even if the position is that something else will come in of a lesser order but somewhat similar, it is quite wrong at this moment to keep the thing that they have criticised for so long with regard to the eight people currently subject to the level of suspicion that we have heard about. It cannot be right to continue that until the end of this year. At the very least, the Government should be reducing the constraints upon liberty to the standard that they are intending to introduce, and then that can be revisited in December. However, it cannot be right for them to continue with control orders when they so bitterly opposed their existence once they had been introduced by new Labour in government. I ask that, in the spirit not just of decency but of appropriateness, the cases that we have spoken about and the noble and learned Lord, Lord Lloyd, mentioned be revisited.

I reiterate what my noble friend Lord Judd has said: one of the jewels in our crown, one of the great limbs of our democracy, is the way in which we interpret the rule of law. I am a proud champion of the common law. We have always believed that due process was vital before we in any way encroached upon the liberty of human beings. That is a proud tradition here and it is a sort of ceding to the terrorists if you abandon those values, which are so precious in our society. I strongly urge that we do not go down the road of introducing something similar, because it is a poison in the system. It is a way of saying that it was not just a temporary measure; somehow we have bought into this idea, and an alternative to the things that we have always believed in can now be introduced. I urge that we think again about that.

I was interested to hear that the noble Lord, Lord Macdonald, said that there are alternatives, and I hope that in the months to come the Government will look again at what they are intending to do.