Prevention of Terrorism Statement 22 February 2004 (Hansard, col 151 – 155)

The Secretary of State for the Home Department (Mr Charles Clarke):

With permission, Mr. Speaker, I should like to make a statement about the Prevention of Terrorism Bill, which is being introduced today.

On 26 January, I told the House that I intended to bring forward a Bill as quickly as possible to repeal the powers in part 4 of the Anti-terrorism, Crime and Security Act 2001 — the 2001 Act — and to replace them with a new scheme of control orders applicable to all suspected terrorists irrespective of whether they are British or foreign nationals and, in relation to most controls, irrespective of the type of terrorism with which they are involved. The Bill is designed to meet the Law Lords' criticism that the previous legislation was both disproportionate and discriminatory.

The Bill needs to be seen in the context of the scale of the continuing and serious threat to the security of the United Kingdom from terrorism. I will today publish a series of discussion papers that set out the Government's view of that threat and our strategy for reducing it. In 2004, I laid before the House a copy of the report of the noble and learned Lord Carlile of Berriew on the operation of the part 4 powers in the 2001 Act. Let no one be in any doubt that there are terrorists here and abroad who want to attack the UK and its interests.

Some believe that the absence in this country of a terrorist outrage such as 9/11 or Madrid means that the terrorist threat has somehow passed us by or failed to materialise. That view is short-sighted, complacent, ignorant of the facts and potentially cavalier in its disregard of the safety of this country. I pay tribute today to the vigilance and professionalism of our security authorities, including the police, for all that they have done and are doing to keep this country safe. It is their efforts, rather than any reduction in the ambition of terrorist organisations, that have protected us from such an attack.

My principal responsibility as Home Secretary is to protect this country and everyone within it. I am determined that we will take the steps necessary to ensure our safety. The Government's preferred approach — our first option — is to prosecute and convict terrorists. We are considering the scope for new offences, including that of being concerned in "the commission, preparation or instigation of acts of terrorism" and other measures, with a view to helping the police and prosecuting authorities to bring more cases to court. I intend to bring forward further counter-terrorist legislation on those issues as soon as parliamentary time allows.

Some suggest that we could bring more prosecutions, if only we would allow intercept to be used in criminal proceedings. I have thought carefully about that, but for all the reasons set out in my written statement to the House on 26 January, I do not believe that it is true. The reality is that intercept is only a part — often a small part — of the intelligence picture in such cases. Its main value is usually in helping the intelligence and law enforcement agencies to direct their resources, such as surveillance, most effectively to disrupt terrorist activities and gather evidence to support arrests and prosecutions.

The fact is that there will always be some people — including some extremely dangerous people — whom we cannot prosecute, either because the material that we have is inadmissible in criminal proceedings, or because it cannot be used for fear of revealing, and so endangering, sources and techniques. Some say that we should do nothing about those people, or that we should just monitor their activities through surveillance and so forth and hope to deflect them in that way. I do not accept that — the risk is too great. That is the reason for the Bill that I am publishing today.

The Law Lords' judgment on 16 December found that the part 4 powers in the 2001 Act were disproportionate and discriminatory in that they applied only to foreign nationals, and we had apparently managed to contain the threat from British nationals without detention. As I told the House on 26 January, I accept that judgment, and therefore believe that it is important to address those concerns. We should not simply renew the current legislation, which the Law Lords so overwhelmingly regard as flawed. We should replace it — with strong measures that are fully compatible with the ECHR, and applicable to both British and foreign nationals.

The Bill that I propose empowers the Secretary of State to make control orders and to impose under them a range of controls on the individuals concerned that will be tailored to meet the threat that each poses. The purpose of the orders is to prevent an individual from continuing to carry out terrorist-related activities. The orders will be time-limited, but they will be capable of being renewed or remade if the threat posed by the individual justifies it.

The Bill makes provision for a range of controls to be imposed. The list will include prohibitions or restrictions on the possession of specified articles or specified services or facilities, on association and movement, and on an individual's place of residence, place of work or occupation. Other restrictions will be placed on those individuals' ability to travel, including abroad. A breach of a control order without prior consent will be a criminal offence, triable in the usual way through the criminal courts and punishable by imprisonment or a fine, or both.

At the top end, the obligations that could be imposed could include a requirement for the individual to remain in a particular place at all times, or some similar measure that amounted to a deprivation of liberty. The place in question will vary with the threat posed by the individual. It could be the individual's own home, or his or her parents' home. It could even, in certain circumstances, be in accommodation owned and managed by the Government.

However, such severe forms of control order would require a derogation from article 5 of the ECHR before they could be implemented. As hon. Members know, article 15 of the ECHR allows member states to derogate from certain aspects of the convention where there is a "state of public emergency threatening the life of the nation" and the measures proposed are "strictly required by the exigencies of the situation".

Therefore, the basis of any derogation would be those two conditions — the threat to the life of the nation, and the necessity for measures that would deprive people of liberty. The Bill therefore provides that I can make orders that require a derogation only if the following factors apply: first, if there is a designated derogation in force from all or part of article 5 in respect of a public emergency threatening the life of the nation; secondly, if the obligation imposed is such as has been described in that derogation; and thirdly, if I am satisfied that, on a balance of probabilities, the person is, or has been, involved in terrorism, and that the imposition of that obligation on that person is strictly required for the purposes of protecting the public from risks arising out of, or associated with, that public emergency.

In the event that a derogation was necessary, I would make the designated derogation order. It would come into force immediately but under the Human Rights Act 1998, it would need to be confirmed by a vote in each House of Parliament within 40 days of its having been made if it were to continue in force. So the conditions of any derogation—that is, the threat to the life of the nation and the necessity for the measures that would amount to a deprivation of liberty—would be considered, assessed and voted upon by every Member of Parliament if it were to remain in force. I believe that this framework is robust and enables the security of this country to be properly addressed in all foreseeable circumstances.

These are rightly onerous conditions, which Parliament will have to consider at any time when a derogation is made. I have, of course, carefully considered the current situation, and I have to tell the House that it is not my intention to seek a derogation at this time.

I am clear that a derogation is justified on the basis of the threat that we currently face. As I told the House on 26 January, there is a continuing public emergency as a result of the threat from al-Qaeda, its agenda and its adherents, including the different groups and linkages that make up the al-Qaeda movement in its broadest sense.
However, on the second criterion for derogation — the necessity for the measures — I have been advised by the police and security authorities that they consider that the control orders that will be established by this legislation are sufficient to deal with the individuals concerned and that deprivation of liberty, although valuable, is not "strictly required", in the language of the convention. They support the measures in the Bill that allow me to impose obligations up to, but not including, a "requirement to remain in a particular place at all times", and the flexibility that they give me to tailor the controls imposed under any order to the threat posed by the particular individual. The security authorities tell me that at this stage they do not want to add anything to the range of controls that I am suggesting.

Of course, these circumstances may change in future, and quickly. Were the current situation to worsen, we could find ourselves in a position in which it was imperative that we were able to place a particular individual or individuals under an obligation to remain in their homes at all times, or to impose some other measure that amounts, in effect, to a deprivation of their liberty within the meaning of article 5 of the European convention on human rights. The Bill will allow me to impose such an obligation on a particular individual or individuals as appropriate, provided that a designated derogation order setting out such obligations is in force.

When considering whether to derogate, my starting point will be, as now, the threat that we face. I shall look to the security authorities to advise me on that and on the measures that they think are strictly required to meet that threat. I shall also take advice on the legal and other issues that arise in relation to any proposal to derogate before making a final decision.

If my decision is to derogate, I shall make the necessary designated derogation order and lay it before Parliament. As I said, the order will come into force immediately but will continue in force only if it is confirmed by a vote in both Houses within 40 days of being made.

Any derogation from article 5 of the ECHR raises serious issues. Were we to derogate, we would need to keep the need for such a derogation under regular review. The Bill therefore provides for me to lay an order, subject to the affirmative resolution procedure, before Parliament every year after the first to the effect that it continues to be necessary to have the power to impose derogating obligations by reference to the derogation. That derogating control order would have effect beyond the first year of the derogation only while such an order was in force, so Parliament would have an opportunity annually to have its say on whether any derogation continued to be necessary.

The Bill gives certain responsibilities to the Secretary of State. I know that some hon. Members would prefer those responsibilities to be allocated entirely to the judiciary. I have listened carefully to all that has been said on this point, both inside and outside the House, and I have sought in the Bill to address the concerns that have been expressed. However, as I said, the Government's, and my, prime responsibility is to protect the nation's security. In many ways, that is our paramount task. Decisions in this area are properly for the Executive, who are fully accountable to Parliament for their actions. However, when an individual is deprived of liberty for any length of time that is, of course, also a matter for the courts. Everyone must recognise that in the interests of security and speed an order may need to be imposed immediately, but in those exceptional cases of a clear requirement to make an order depriving an individual of his liberty, the courts must determine as soon as practicable whether the order should continue.

It follows that the judiciary has a critical role to play in the process. In relation to control orders not requiring derogation, its role is to review and, when appropriate, to confirm decisions made by the Executive. For derogating control orders, its role is to decide, on the merits, whether to continue the order or to refuse to confirm it. The Bill makes full provision for that.

The Bill provides for non-derogating control orders to be subject to challenge in the High Court by the person against whom the order has been made, and for the Court to apply the principles of judicial review in hearing the case. The Court will be able to consider the issues in both open and closed session, with a special advocate representing the interests of the subject of the order in closed sessions.

Derogating control orders will be subject, as befits the seriousness of the issues raised, to a different form of scrutiny by the High Court involving an automatic two-stage process. On being made, the order will have to be referred immediately to the Court for consideration within seven days at a preliminary hearing to assess whether the Home Secretary had reasonable grounds, prima facie, for making the order. Both sides will be represented. There will be open and closed sessions and the interests of the subject of the order will be represented in closed session by a special advocate.

If the Court were so satisfied, the case would be automatically referred to the High Court for a full hearing at which the Court would decide for itself, on an assessment of all the material, whether the order should have been made and what conditions should have been applied. Again there will be open and closed sessions and the interests of the subject of the order will be represented in closed session by a special advocate. It will be open to the Court at both stages to strike down the Secretary of State's order or give him directions to modify it.

I have published the Bill today in full confidence that it meets the situation that we face in three important respects. First, I believe that it meets the judgment of the Law Lords. Secondly, the Bill rightly confirms that the security of this country lies with the Government of the day, fully responsible to Parliament and the country. The Government are fully accountable to Parliament for the way in which they carry out their responsibilities, and under the Bill that accountability will be manifest, demonstrable and timely. At the same time, the process of judicial scrutiny that I propose should meet the genuine concerns that have been raised. Thirdly, the Bill will ensure that the measures that we put in place fully meet the threat that we face from terrorism, both as we see it today and as it might, despite all our best efforts and those of other countries, develop and mutate over time.

This is an important Bill. It raises serious and difficult issues. But we must have the capacity to protect our people now and in the future. It would be the gravest dereliction of duty to wait until we have suffered a terrorist outrage here, and then respond only after the event. I am not prepared to take a risk of that kind, and I hope the House will join me in that. On that basis, I commend the Bill to the House.