|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
We are making this change to the definition of terrorism following a long and detailed study on the issue by the noble Lord, Lord Carlile, who has just made the case for it far more eloquently than I could. We believe that the change will help to clarify our legislation. As I made clear on the first day of Report, I have made every effort to take the Bill forward on a consensual basis. Where possible, we should all try to reach agreement on measures that are relatively uncontentious and relatively minor in their effect. This is such a measure and I have heard nothing said today that would suggest that retaining this clause in the Bill would cause any problems. It therefore seems odd that this is something on which the House could possibly divide. Where there are major differences in this House we should of course put the issue to the vote; I would expect that to be the case. This does not seem to be such an issue, however, and I ask the noble Baroness to withdraw the amendment.
Baroness Neville-Jones: My Lords, I confess that I remain unpersuaded that it is a good ideaor good legislationto introduce unnecessary categories, but I shall leave it at that. I beg leave to withdraw the amendment.
(c) unless section 3(1)(b) below applies, the DPP has certified that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence..
The noble Lord said: My Lords, I understand that the Government share our view that, where possible, potential controlees should be prosecuted rather than made subject to control orders. Such an approach not only accords with principles of justicerestraint should be imposed on individuals as a consequence of what they have done in the past, not as a result of an
11 Nov 2008 : Column 608
As I indicated in Committee, the principle has been well articulated by the noble and learned Baroness, Lady Hale, in the recent case of R v E, heard in the Appellate Committee of your Lordships House. The speech that she made particularly addressed this issue. Although I quoted from it in Committee, it is worth doing so again on Report. The noble and learned Baroness said,
During the passage, in the early months of 2005, of what was to become the Prevention of Terrorism Act, we fought strenuously from these Benches to enshrine in the original legislation the terms of the two amendments before your Lordships House today. The first requires that the Director of Public Prosecutions decide whether prosecution is the appropriate course of action to take in respect of each potential controlee. The Act currently places that responsibility on the police. In our view, that approach exhibits a fundamental constitutional misunderstanding. It is the Crown Prosecution Service, not the police, which decides whether an individual should be prosecuted, based on the twin considerations of the cogency of the evidence and the public interest. Why should potential controlees alone be exempted from the application of this principle?
The second amendment would ensure that the prospect of prosecution, if legitimately considered and properly rejected at the outset, should nevertheless be kept under regular review. In Committee, I drew your Lordships attention to the strong endorsement given to this matter by the Appellate Committee of your Lordships House, again in the case of R v E. It endorsed the view of the Court of Appeal, expressed at an earlier stage in the case, that it is implied in the scheme of the Prevention of Terrorism Act that the Secretary of State is under a duty to keep the possibility of prosecution under continuing review.
In the E case the Secretary of States argument was that all that s. 8 PTA 2005 required was that she consult the chief of police at the outset and then make periodic inquiry as to whether the prospect of prosecution had increased. The courts rejected that argument, holding that there is an implied continuing duty to review, and that it is implicit in that duty that the Secretary of State must do what she reasonably can to ensure that the continuing review is meaningful, by providing the police with relevant material. As we observed in our report on this years annual renewal of the control orders legislation, we are not at all confident that the police see very much of the material on the basis of which the Home Secretary imposes control orders on individuals. It remains our view that the policy of giving priority to prosecution would
11 Nov 2008 : Column 609
Baroness Manningham-Buller: My Lords, what I have to say is not about the merits or otherwise of control orders, which is subject to another debate. In my experience, prosecution is always preferred as the answer to dealing with some of these problems. Control orders came into being for those cases where the evidence was insufficient or did not exist sufficiently because it was based on intelligence. People from my service and the police always prefer prosecution if that is feasible.
Secondly, from my experience, and perhaps without the formality of the second amendment, the case for prosecution was regularly reviewed, much more frequently than every three months. It was far preferable to go down that route if at any stage it was possible. The case for prosecution was constantly and regularly considered.
As to whether the Secretary of State has available to her material that is not available to the police, I find that really strange. The intelligence that my service and others produced was shared with the police and summarised for the Secretary of State or given to her in its entirety if she so wished. I am mystified by the suggestion that the police would not have access to that material, because that is certainly not my experience. I am not taking a view on the amendment as such, but that is the background from my experience of how these cases are handled.
Baroness Miller of Chilthorne Domer: My Lords, the Minister will know that we on these Benches have always had worries about control orders and their continued use. The words of the noble Baroness, Lady Manningham-Buller, provide some reassurance but we support the added reassurance contained in the amendments.
Lord West of Spithead: My Lords, with this and a subsequent group of amendments, we are returning to control orders. I am grateful that noble Lords listened to the explanation in Committee of the Governments position on the JCHR amendments on control orders, to the extent that not all those amendments have been retabled on Report. I note, however, that these amendments are essentially the same as those debated in Committee. Unfortunately, no account appears to have been taken of the Governments concerns on the amendments, and I hope that I can convince noble Lords that our concerns are serious enough to ensure that this amendment is withdrawn.
The amendments deal with points relating to the prosecution of controlled individuals. As I explained in Committee, and as has been supported by noble Lords, the Governments preferred approach, when dealing with suspected terrorists, is prosecution. That is absolutely clear. So there is no disagreement between
11 Nov 2008 : Column 610
Amendments Nos. 48B and 48C are not necessary to ensure that prosecution is always considered and kept under careful review. There are a number of robust safeguards already in placesome touched on by the noble Baroness, Lady Manningham-Bullerin the current legislative requirements to ensure that whenever possible, suspected terrorists are prosecuted rather than made subject to a control order.
First, there is consideration of the prospects of prosecution before a control order is imposed. Under the 2005 Act, the Secretary of State must consult the police regarding the prospects of prosecution for a terrorism-related offence before making or applying for permission to make a control order. The police must then consult the Crown Prosecution Service. This consultation process already goes beyond what is expected in many investigations where the police decide whether or when it is necessary to consult the Crown Prosecution Service. The position is set out in a letter from the police to the Home Office and laid before the High Court as part of the courts review of each order. This information is available to the controlee.
The second key safeguard concerns the ongoing consideration of prosecution, where the 2005 Act rightly lays the duty of keeping the prospect of prosecution under review on the chief officer of the police force, who must consult the CPS as appropriate.
The third key safeguard is fulfilled by the control order review group. During its quarterly meetings, the Home Office seeks the views of law enforcement agencies on the prospects of prosecution of controlees. As the noble Baroness, Lady Manningham-Buller, said, this is done almost continuously, because that is what we would like to achieve.
The fourth key safeguard is the judicial review of each control order. If the public interest was demonstrably better served by prosecution of an individual against whom there was a sufficient evidence to prosecute, the order would be extremely likely to fail the test of necessity and so would be quashed by the High Court. This, as I outlined in Committee, was reflected in the court judgments in the case of E. It is interesting how that case seems to be quoted by those on both sides of the argumentbut it seems to support what I am saying.
These four key safeguards have been subject to extensive scrutiny by the courts. The current legislative provision and procedures have been accepted by the courts as adequate, including by the House of Lords in the E judgment, and ensure that, whenever possible, individuals who are or may become subject to control orders are prosecuted for terrorism-related offences. No changes to the legislation were required by the Lords. So that is the context in which we are considering these amendments.
The absence of prosecutions of controlled individuals for terrorism-related offences, other than breaches of their control order, is not an indication that the current provisions have not been applied diligently. Rather, it demonstrates that at the time when the control order was made there was, and continues to be, no realistic
11 Nov 2008 : Column 611
Amendment No. 48B proposes that non-urgent control orders can be imposed only if the Director of Public Prosecutions has certified that there is no reasonable prospect of successful prosecution. I want to start, as I did in Committee, by querying the basis on which the amendment is proposed. Successful conviction and imprisonment offers the best outcome for the protection of the public. For that reason, the strong preference of the Government, law enforcement agencies and the CPS is to prosecute suspected terrorists. This amendment rather supposes that the Government and law enforcement agencies would rather put suspected terrorists on control orders than prosecute them. There is no logical reason for that assumption; indeed, it is counterintuitive. That in itself should lead noble Lords to question the necessity of this amendment.
As noble Lords who attended the debate in Committee will know, there are a number of reasons why the Government oppose this amendment. I remind noble Lords that this amendment was effectively explicitly argued for by a controlled individual in the case of E, where it was said that the lack of a reasonable prospect of prosecution was a condition precedent, or in other words a pre-condition, to making a control order. The Law Lords scrutinised this matter at length and explicitly rejected it. They concluded that no changes to Section 8 of the Prevention of Terrorism Act were required. Indeed, they considered that there were strong practical reasons for the current approach, and that changes would have the,
As I have explained, the Secretary of State is already statutorily obliged to consult the police on the prospects of prosecution before an order is made or applied for. The police are obliged to consult the CPS even where it is clear to them that there is not sufficient evidence to prosecute. However, this consultation, still less the results of that consultation, are rightly not a condition precedent of making an order. There are good reasons for this: providing certification by the DPP may not be practicable before the making of an order.
Amendment No. 48B makes an exception for urgent control orders to try to address the urgency point highlighted by the Law Lords. None the less, it is not appropriate to include certification on the prospects of prosecution as a condition precedent. There are both principled and practical reasons for this, in addition to the issue of urgency. I set these out to the Committee, but I believe that it is worth reiterating those reasons.
First, the amendment would undermine the constitutional position, effectively giving the DPP a veto over the Secretary of States decision to impose a control order. In other words, she would not be able to impose a control order even if she thought it necessary to do so to protect the public from a risk of terrorism, if the DPP said there was a reasonable prospect of prosecuting that individual. This is clearly inappropriate, as such decisions are properly a national security
11 Nov 2008 : Column 612
Secondly, and related to the first point, it could expose the public to an unnecessary risk from terrorism by leaving a public protection gap. It is not therefore just a dry constitutional matter. A control order may be necessary to protect the public from a risk of terrorism posed by an individual, even though prosecution of that individual is possible. For example, an individual may be on bail pending trial for a relatively minor offence and so the risk posed by the individual is much greater than the bail conditions that a judge would lawfully be able to impose on the individual. In those circumstances, a control order might be required in the interim to manage that risk.
Thirdly, it could damage other investigations, other prosecutions, or otherwise damage the public interest. To reiterate the examples I gave in Committee, in rare circumstances the CPS may decide that a prosecution is not in the public interest, even if there is evidence available that may be sufficient to prosecute, perhaps because a prosecution could bring into the public domain a valuable intelligence-gathering technique, reducing its future efficacy, or the prosecution of a particular individual for a particular offence might damage a more complex, ongoing investigation of that individual and a wider group of individuals. This is not an issue limited to control orders or terrorism. In every case that goes to the CPS, even if the CPS concludes that the evidential threshold is met, it must separately assess whether a prosecution is in the public interest. This amendment covers only the first element.
Fourthly, it would likely have the presumably unintended effect of reducing the initial judicial scrutiny of control orders. The operational reality is that providing an answer to whether an individual can be prosecuted is a much longer and more complex and resource-intensive task than simply beginning the process by consulting on the prospects of prosecution. Consequently, the amendment might well force the Government to use the urgency procedure more, when the national security case meant that a certificate could not be waited for any longer. This would mean that the normal requirement for the Secretary of State to seek permission to make the control order from the High Court would not apply. As a result, a valuable initial judicial oversight mechanism will not apply in a much greater number of cases, as it will simply not be possible to obtain the necessary response from the DPP prior to the need to make and serve a control order in the interests of national security.
Fifthly, and on a point of detail, specifying the DPP personally rather than the relevant prosecuting authority is inappropriate. It is unusual to do so, places an unnecessary resource burden on that post and creates an unnecessary potential bottleneck. Nor would specifying the DPP cover control orders in Scotland and Northern Ireland.
In summary, therefore, this amendment undermines current constitutional arrangements, potentially exposes the public to an unnecessary risk of terrorism and damages other national security investigations or the public interest, would likely reduce the initial judicial
11 Nov 2008 : Column 613
Amendment No. 48C deals with the ongoing review of the prospects of prosecution. This amendment contains a combination of inappropriate and unnecessary elements. Proposed new subsection (6A)(a) in the amendment proposes that the Secretary of State ensures that the prospects of prosecution are reviewed every quarter. This is an inappropriate interference in the current constitutional position. The CPS, not the Secretary of State, is responsible for considering whether a person should be charged with a criminal offence. Any shift in this responsibility could undermine the independent role of the CPS and the police. It is therefore inappropriate to require the Secretary of State to ensure the actions of a department not under her supervision or control. The CPS is independent of the Secretary of State. Nor does it make organisational or business sense to do so, as it cannot be sensible to task someone in relation to an organisation for which she is not responsible. It is perhaps worth reminding noble Lords of a passage from the House of Lords judgment in E, on the respective constitutional roles of the Secretary of State, the police and the CPS. It states that,
The 2005 Act reflects this constitutional and organisational position. It already contains a statutory obligation on the chief officer of police to keep the possibility of prosecution under review throughout the period that the control order is in force. As the noble Baroness, Lady Manningham-Buller, already mentioned, that is done regularly. The CPS is also consulted as appropriate.
As with the previous amendment, I am sure that noble Lords do not wish to undermine the accepted constitutional roles of the Secretary of State, the police and the CPS. Indeed, I have no doubt that noble Lords would express extremely grave concern about any government proposal that the Secretary of State should have a role in deciding whether an individual should be prosecuted.
Proposed new subsection (6A)(a) is also unnecessary, as is proposed new subsection (6A)(b) and (c). The statutory obligations of the Act, combined with court judgments, already deliver the intention behind the amendment. The Secretary of State has a duty to keep the necessity of a control order under review. That means there is an implicit ongoing duty that the prospects of prosecution are kept under review. The critical point is that the duty to review those prospects does not fall on the Secretary of State, but on the police and CPS. The Secretary of State cannot ensure that it happensthat is not within her gift. What the courts have confirmed that the Secretary of State must do is periodically consult the police on the prospects
11 Nov 2008 : Column 614
It has been argued that, without an amendment to the Act, the current legal position is unclear. There is no factual basis for that assertion. As I made clear in Committee, we operate under a common-law system and it is widely accepted that public authoritiesamong othersare bound not just by statute, but by case law. Case law can and does provide sufficient precision and clarity to comply with the important concept of legal certainty just as much as statute can. The Government are clear that there is no need to legislate on these latter points to reflect the principles formulated in case law as currently interpreted by the courts. Indeed, it is considered bad practice to legislate unnecessarily. Moreover, the Home Office formally checks the position in relation to prosecution at the quarterly CORG meetings. Amendment No. 48C is therefore neither necessary nor desirable. The courts, including the House of Lords, have considered this point at length. They confirmed the extent of the Secretary of States responsibilities on this matter and that no changes to this section of the Act were required. The amendment combines elements that would undermine the constitutional position with others that would have no beneficial practical impact as they are already provided for by the statutory obligations contained in the Act combined with existing case law.
|Next Section||Back to Table of Contents||Lords Hansard Home Page|