Prevention and Suppression of Terrorism

This is our fifth debate on control order renewal. There is a risk of temporary measures becoming permanent, and that is one of my main concerns about how control orders have developed. The Joint Committee on Human Rights, which I chair, accepts that there is a positive obligation on the state to protect us all against terrorism, but it is becoming increasingly clear, year on year, that the system is unfair, not compliant with the European convention on human rights, counter-productive, and now, in our view, unsustainable. For years I have set out my Committee's reservations about the lack of procedural justice, and have on various occasions proposed amendments to counter-terrorism legislation. However, I shall start on a slightly different tack tonight. I want to talk about the impact of control orders on the individuals concerned. Our inquiry heard evidence from solicitors who represent individuals who are the subject of control orders. One such solicitor, Gareth Peirce, who has had many years of experience of acting in terrorism cases, described the primary sensation of those who are subject to control orders as "despair" and feeling "utterly impotent". She described how at one point, three of her clients who were subject to control orders were all in the health section of Belmarsh prison, all having been imprisoned because they were in breach of their control orders, having made serious attempts on their lives and having been left, either temporarily or permanently, by their wives. Gareth Peirce described the impact of a control order on the relevant person and their family as "colossal". The whole family is affected by the conditions of a control order, which can prevent visits to the house without authorisation, as well as the use of phones, computers and the internet. I ask hon. Members to think about the effect of not being allowed to use a computer on children over the age of seven, bearing in mind how important access to the internet is for their school work. There have been repeated situations in which bright, academically high-achieving children have been in trouble at school or have fallen by the wayside as a result of such conditions, despite repeated requests having been made to allow them such access—even in a case in which the relevant man could not read or write English and was completely computer illiterate. In summary, the impact can be, and usually is, colossal on the relevant person and his family. We now see the growing use of a new form of control order—internal exile. Such orders have been applied to British citizens who have grown up in east London all their lives and whose grandparents, or whose wife's grandparents, are there. Men have been parachuted suddenly into Nottinghamshire or Gloucestershire and told that they have to live there from then on, as a modification of their control order. The women in such cases are treated with complete contempt. It is as though they do not exist. The man is told, "Your wife, if she works, can find another job; she can join you if she wants to or she can stay in east London. We know that you can find schools for the children in the area." The effect on a number of families has been quite extraordinary. That situation might affect only a small number of people, but its contribution to what one might call the folklore of injustice is colossal. It is not something that other people in the community are in ignorance of; it is highlighted because of the perception of the extent of the injustice, so it has a wide effect. Of the 12 controlees—now 11, we are told—eight have been required to relocate, but two of those relocation conditions were subsequently overturned by the court. It seems that the use of that condition is becoming more frequent in relation to the so-called light-touch control orders. Of the 45 original control orders, only 17 were required to relocate, so the proportion is much higher now than before. The same tactic was used under apartheid in South Africa, but it did not do any good. It was used by Tsarists in Russia, but it did not do them any good, and it was used by the colonels in Greece, and it did not do them any good, either. Internal exile does not work; it is counter-productive and creates more problems than it solves. The Committee also heard about delays in modifying control orders. Another solicitor told us that one of his clients made an application for various conditions to be varied, among other things so that he could attend a college course, and use a particular dentist with whom his wife and children were registered, just outside the boundary of where he was allowed to go. All those requests were refused and an appeal was lodged in February last year, but it took until July for the court to hear the case. By then the college course was done, and presumably the man's wife had found another dentist. I mentioned in my intervention the cost of control orders, as hon. Members question their efficiency. Our Committee feels a growing sense that their financial cost has become disproportionate to any benefit that can plausibly be claimed for them. We have had a lot of correspondence on this issue and we have dug out the figures. So far, there is a running total of £13 million over three years, including £8.1 million in legal costs, £2.7 million in administrative costs and £2 million to the Legal Services Commission for publicly funded representation. That is just the start of the tab. The representation figure does not include ongoing cases, because the bill is submitted only at the end of a case. It does not include the cost of the compensation the Government will now have to pay in relation to cases thrown out by the courts as a result of the AF judgment. Nor does it include the costs of running the courts, bearing in mind the dozens of hearings—from the High Court all the way to the House of Lords, and now the Supreme Court. When we put all that lot together the estimate is enormous. Even on those figures, the amount is more than £1 million per controlee. Although the Government will not tell us the daily cost of round-the-clock 24-hour surveillance—because we have to assume that some people are under surveillance as well as being subject to control orders—£1 million must buy an awful lot of police officers and security service people. Surely, that is a more effective way of using public money than spending it on Queen's Counsel, bureaucrats and courts, and a much better way of keeping us safe than having cases trailed through the courts. I have already mentioned procedural issues. Time and again, my Committee has been proved right and the Government proved wrong. I want to deal with just one aspect—gisting. Last year, in the renewal debate, we heard about the case in the Grand Chamber of A v. UK. The Government said it had no wider application and applied only to deprivation of liberty cases. Surprise, surprise, less than six months later in June 2009, as we predicted, in AF v. the Home Secretary, the House of Lords said that under article 6 the same provisions for the conduct of a fair trial applied in the context of all control orders. Lord Phillips said:""Where…the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be."" As a consequence, the Government were to review all current cases. What happened? The AF control order was lifted, because the Government did not want to give the gist of his case, so he is now presumably subject to surveillance. In total, six orders were revoked. Two were found not to have been necessary in the first place, which is somewhat ironic, if not insulting to those concerned, and one was lifted by order of the court. The Government lifted three because they did not want to gist, so two were replaced by so-called light-touch control orders. Light touch control orders are a whole new avenue for the lawyers. The Government say that article 6 does not apply. That argument has already been rejected by the High Court and will no doubt be rejected by higher courts as well, because the basic principle of a fair trial applies whether the control order is light-touch or more serious. We are now told that the Government do not intend to amend the Prevention of Terrorism Act 2005, so we have an Alice in Wonderland scenario where the relevant provisions on control orders in the Act are now to be read as meaning exactly the opposite of what the Act says about disclosure. The Act says there cannot be disclosure, but now we have to read it as though there has to be disclosure, and the Government are not prepared to amend it to make it comply with what the House of Lords has said. In practice, gisting is not really happening effectively. The special advocates who gave evidence to us complained about the minimalist approach. They said that it was an iterative way of proceeding—giving a bit of evidence at a time. That is unfair to controlees, because they are expected to answer part of a case, then a bit more and then a bit more. We are told that the security services are institutionally cautious in how they proceed. One of the real complaints is that late disclosure is endemic in the system. We were told by special advocates that they were given great piles of paper on a Friday for a Monday hearing—large volumes of material that they are not allowed to take home, and which has to stay locked in a safe in their chambers. In no way can they prepare properly for cases. As was said earlier, the Government do not gist in light-touch cases anyway. Special advocates have real complaints about the processes. We have heard many of the complaints before, so I shall not go into them all again. They include lack of access to independent expertise in evidence, so there is nil ability to challenge Government objections to disclosure because advocates do not have the expert evidence to back it up. Most important of all is the lack of ability to communicate with the affected person after they have seen the closed evidence. There is even a problem in accessing previous court judgments and decisions, to find out what the precedents are. Everything is done by word of mouth and there is no proper way of proceeding. I have raised the issue with my right hon. Friend the Minister in parliamentary questions, but we have had no sensible answer.