UK: Statement by Home Secretary on "control orders" (26 January 2005)

Measures to Combat Terrorism
12.31 pm

The Secretary of State for the Home Department (Mr. Charles Clarke): With permission, Mr. Speaker, I should like to make a statement about the future of the powers in part 4 of the Anti-terrorism, Crime and Security Act 2001. These matters have of course received the closest attention in this House and in the other place, through the work of the Intelligence and Security Committee, the Home Affairs Committee, and the Joint Committee on Human Rights—to all of which I pay respect. I appreciate, too, the valuable work carried out by a Committee of Privy Councillors under the chairmanship of Lord Newton of Braintree, and of course we have had the regular advice of Lord Carlile of Berriew on the operation of both the Anti-terrorism, Crime and Security Act and the Terrorism Act 2000. This work shows the comprehensive scrutiny that both Houses give to these difficult issues. And of course, what I am saying today follows on from the consultation paper that my predecessor published in February last year, which has informed the conclusions that I am presenting today.

As the House well knows, the part 4 powers are immigration powers. They enable me to certify and detain pending deportation suspected international terrorists whom, because of our international commitments, we cannot remove. Despite concerns when we legislated for part 4, the powers have been used very sparingly, with only 17 people certified since the powers were introduced. Those currently certified and detained were certified as being suspected international terrorists on the basis of a careful Security Service assessment of the significant threat that they pose—and that judgment has been upheld regularly by the Special Immigration Appeals Commission.

On 16 December last year the House of Lords Judicial Committee handed down its judgment on the compatibility of the part 4 powers with the European convention on human rights. The members of the Committee quashed the Human Rights 1998 (Designated Derogation) Order 2001 and declared section 23 of the Anti-terrorism, Crime and Security Act incompatible with articles 5, on the right to liberty, and 14, on freedom from discrimination, of the ECHR. They did so for two main reasons—first, because they considered that the part 4 powers were discriminatory in that they only applied to foreign nationals, and secondly, because they were not proportionate as a response to the threat that we faced from terrorism.

It is true that the part 4 powers apply only to foreign nationals. The reason for that is that when we looked at the very real threat that we faced from international terrorism in the immediate aftermath of the terrible events of 9/11, we were able to identify a small number of foreign nationals resident here who posed a particular danger to us. Prosecution for their activities was not possible for evidential reasons—although two of those certified and detained under the part 4 powers have since been convicted of criminal offences—and there was no realistic prospect of deporting them.

The part 4 powers were the means of containing those foreign nationals' activities where prosecution was not possible. I can tell the House that the Government

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believe that the powers have played an essential part in addressing the current public emergency, because they have been successful in containing the threat posed by those certified and detained under them.

Moreover, the powers have had another effect. It is clear from the intelligence reports that I have seen that the existence and use of the powers have helped to make the UK a far more hostile environment for international terrorists to operate in, with the result that some have been deterred from coming here, and others have left entirely, to avoid being certified and detained. I am, of course, pleased about that, and reaffirm that the UK must never be regarded as a soft touch or a safe haven for terrorists.

The Government believed that the part 4 powers were justified, because the threat appeared to come predominantly, albeit not exclusively, from foreign nationals, because foreign nationals do not have the same right to be here as British nationals, and because against the background of UN Security Council resolution 1373's strong condemnation of terrorism, it was necessary to take positive action against peripatetic terrorists who happened to be living here.

That said, however, I accept the Law Lords' declaration of incompatibility with the ECHR of section 23 of the Anti-terrorism Crime and Security Act. I accept, too, the Lords' judgment that new legislative measures must apply equally to nationals as well as to non-nationals. But we still need to decide how to deal with the threat presented by terrorists without the assistance of the part 4 powers.

My starting point is the threat that we face. That is, of course, a heavy responsibility for all concerned, and one that has the highest priority of all. That is why I have to take account of events happening around the world, and in particular here at home. I have had frequent discussions with the director general of the Security Service and the Metropolitan Police Commissioner since my appointment. I am left in absolutely no doubt that nothing has happened recently that diminishes the threat, or calls into question the state of public emergency threatening the life of the nation.

The 2001 Act was enacted because there was an unprecedented terrorist threat to the UK, which was assessed to emanate from al-Qaeda and those individuals and groups within the loosely co-ordinated series of overlapping terrorist networks linked to it. Our understanding of the threat has advanced since then, both from an increasing intelligence base and through the investigation of both successful and thwarted attacks. It is clear that some British nationals are now playing a more significant role in these threats. At the same time, networks consisting of foreign nationals with international links remain.

In the past year, we have seen the multiple attacks in Spain in March 2004, attacks at al-Khobar in Saudi Arabia in May, the attack on the Australian embassy in Jakarta, Indonesia, in September, an attack on an Israeli-owned hotel in Egypt in October, and the attack on the US consulate in Jeddah in Saudi Arabia in December 2004.

In these circumstances, I repeat that my judgment is that there remains a public emergency threatening the life of the nation. The absence of the part 4 powers would present us with real difficulties, so I now set out the ways in which we can meet this threat.

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The Government believe that the answer lies in a twin-track approach: specifically, deportation with assurances for foreign nationals whom we can and should deport, and a new mechanism—control orders—for containing and disrupting those whom we cannot prosecute or deport.

I shall deal first with deportation with assurances. As the House knows, we have been trying for some time to address the problems posed by individuals whose deportation could fall foul of our international obligations by seeking memorandums of understanding with their countries of origin. We are currently focusing our attention on certain key middle-eastern and north African countries. I am determined to progress this with energy. My noble Friend Baroness Symons of Vernham Dean visited the region last week. She had positive discussions with a number of countries, on which we are now seeking to build.

I want to make it clear that prosecution is, and will remain, our preferred way forward when dealing with all terrorists. All agencies operate on that basis, and will continue to do so, but all of us need to recognise that it is not always possible to bring charges, given the need to protect highly sensitive sources and techniques.

There is a widespread misconception that if we could only adduce intercept as evidence, we would be able to prosecute those detained. However, the review of intercept as evidence found no evidence to support this, and I have consequently made a written statement today, explaining that the Government do not intend to change the existing arrangements. Intercept provides only part of the intelligence against individuals, and sometimes a small part; it does not stand alone. Some of the material that we have in these cases is inadmissible, and other material, while technically admissible, could not be adduced without compromising national security, damaging relationships with foreign powers or intelligence agencies, or putting the lives of sources at risk. So there are cases in which we remain unable to prosecute. However, that does not mean that we should do nothing to forestall suspected terrorists or to prevent them from planning, assisting or otherwise supporting those willing to carry out attacks.

The Government have therefore decided to replace the part 4 powers with a new system of control orders. We intend that such orders be capable of general application to any suspected terrorist irrespective of nationality or, for most controls, of the nature of the terrorist activity—whether international or domestic—and that they should enable us to impose conditions constraining the ability of those subject to the orders to engage in terrorist-related activities. Control orders would be used only in serious cases. The controls imposed would be proportionate to the threat that each individual posed. Such orders would be preventive and designed to disrupt those seeking to carry out attacks—whether here or elsewhere—or who are planning or otherwise supporting such activities. They would be designed to address directly two of the Law Lords' concerns: discrimination and proportionality.

I turn to the key features of the scheme. The Secretary of State would consider whether, on the basis of an intelligence assessment provided by the Security Service, there are reasonable grounds for suspecting that an

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individual is, or has been, concerned with terrorism. If the answer to that question is yes, and if the Secretary of State considers such action necessary for the purposes of protecting the public from terrorist-related activities, he or she would impose controls on that individual. There would be a range of controls restricting movement and association or other communication with named individuals; the imposition of curfews and/or tagging; and restrictions on access to telecommunications, the internet and other technology. At the top end, control orders would include a requirement to remain at their premises. The controls to be imposed under the new scheme will not include detention in prison, although I intend that breach of a control order should be a criminal offence, triable in the usual way through the criminal courts and punishable by imprisonment.

There will be independent judicial scrutiny involving the hearing of evidence, in open and closed session, against the imposition of the order or any subsequent variation of its provisions. There will be a mechanism for reviewing and modifying conditions as circumstances warrant, subject again to independent judicial scrutiny. Other safeguards will include the Secretary of State reporting regularly to Parliament on the number of orders made. There will be independent annual review of the powers—as now with the part 4 powers—and annual renewal of them. I am considering separately what role the Intelligence and Security Committee of this House might play in that regard.

The Government of course intend to ensure that any future powers that we take in legislation are wholly compatible with the provisions of the European convention on human rights, and if necessary we will employ a new derogation to that effect. I have sought advice from the director general of the Security Service and the Metropolitan Police Commissioner about the powers that we need to deal effectively with the public emergency threatening the life of the nation, and to deal with British and foreign nationals whom we have grounds to believe are engaged in terrorism. On the basis of that advice, my judgment is that the range of powers that I have outlined, including a criminal sanction for breach, will be essential if we are to contain the threat that those who may be made subject to control orders pose to public safety.

I told the House on 16 December that I intended to renew the part 4 powers as necessary. However, my desire is to introduce a Bill to give effect to control orders as soon as is practicable. I can see advantages in enacting the Bill, if it is possible to do so, to a time scale that makes renewal unnecessary. Should that not be possible—I acknowledge that there are serious time pressures—I will seek to renew the part 4 powers for the limited time necessary to put the new arrangements in place. I will need to lay the renewal order in draft, and I will do so tomorrow.

For this reason, I will not be revoking the certificates on the current detainees between now and when the new legislation is in place, unless, of course, the threat that they pose changes and they no longer meet the criteria for certification. Those currently certified and detained were certified as being suspected international terrorists on the basis of a careful Security Service assessment of the significant threat that they pose. That judgment has

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been upheld by the Special Immigration Appeals Commission. We believe that those detained under the part 4 powers continue to pose a threat to national security, and that we should seek to ensure that we take all necessary steps to address that threat.

These are all very difficult issues, with no easy answers. A careful balance has to be struck between the rights of individuals and the protection of society against threats from organisations that seek to destroy central attributes of our society, such as freedom of belief, speech and association, freedom of expression and even our central democracy. All parts of our society—Parliament, the legal system and the media—need an open debate about this so that we understand the complexities of the security situation that we face. I will shortly be bringing forward detailed proposals for the best way to conduct that debate.

My principal responsibility as Home Secretary is to preserve our democracy against those who seek to destroy it through terrorist attacks. The threat is real, and I believe that the steps I am announcing today will enable us more effectively to meet that threat. I am, of course, well aware that the proposals I am making today represent a very substantial increase in the executive powers of the state in relation to British citizens who we fear are preparing terrorist activities and against whom we cannot proceed in open court. That will be contentious, but I believe that the need for us to protect ourselves against the threat justifies the changes I propose. I commend the statement to the House.


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