Background

19. In our two previous reports on the annual renewal of the control orders legislation, in both 2006 and 2007, we were extremely critical of the lack of opportunity for meaningful parliamentary scrutiny of the operation of control orders before Parliament was asked to renew the legislation.[24]

20. We pointed out that laying Lord Carlile's report before Parliament a matter of days before the renewal debate did not provide an opportunity for proper parliamentary scrutiny.[25] Our concerns were echoed in the Lords debate on the renewal order.

21. This year, notwithstanding our critical comments in our last report on renewal, the Government has followed exactly the same practice as last year. The annual report of the statutory reviewer of the operation of the control orders regime, Lord Carlile, was not laid with the draft renewal Order. The EM simply stated that "Lord Carlile's annual report on the operation of the Act is expected to be published in February 2008."[26]

22. This was the subject of adverse comment by the Merits of Statutory Instruments Committee of the House of Lords.[27] Noting that Lord Carlile's annual report, which will give details of how the control order system is operating, was not laid together with the Order, the Merits Committee commented:

"We regard it as poor practice that it was not available at the same time as the Order was laid and we trust that the report will be made available to the House in good time for the debate."[28]

23. As we have pointed out above, Lord Carlile's Report was eventually published on 18 February 2008, three days before the renewal debate in the House of Commons.[29]

24. We would go further than the House of Lords Merits Committee and suggest that by failing to ensure that Lord Carlile's report is available to Parliament sufficiently in advance of the renewal debate to permit proper scrutiny by parliamentary committees, the Secretary of State is frustrating the purpose of the important provisions for parliamentary review of the control order powers in s. 14 PTA 2005.

25. In the Government's response to our Report on last year's control orders renewal, it said "The Government published Lord Carlile's report as soon as was practicable, which this year was the first Monday after the February recess."[30] Last year Lord Carlile's report was dated "January 2007" but was published by the Secretary of State on 19 February 2007, three days before the renewal debate in the House of Commons, and accompanied by a press release by the Home Secretary containing his interpretation of the report, which he had had the benefit of seeing before Parliament. In our view, this apparent delay in making the statutory reviewer's report available to Parliament last year was not only poor practice, it was incompatible with the statutory requirements in s. 14 PTA 2005.

26. Under s. 14 of the PTA 2005 Lord Carlile is required to carry out his annual review of the operation of the control order provisions "as soon as reasonably practicable in the last quarter of the year of the Act's operation", which means as soon as reasonably practicable after 10 December 2007. He is also required to send his report to the Home Secretary "as soon as reasonably practicable" after it is completed. The Secretary of State must lay a copy of it before Parliament, not "as soon as reasonably practicable" after receiving it, but "on receiving it".[31]

27. This year it appears that Lord Carlile's report was laid before Parliament by the Home Secretary at the earliest opportunity: it was received by the Home Office during the parliamentary recess and published on the first sitting day afterwards.[32] In our view, however, the purpose of these important provisions for parliamentary review of the control orders regime in s. 14 PTA 2005 is to provide Parliament with the opportunity to consider carefully the report of the statutory reviewer on the operation in practice of the control order regime to ensure that the parliamentary debate on renewal is properly informed. Proper parliamentary scrutiny should include a reasonable opportunity for the relevant parliamentary committees to consider and if necessary report to Parliament in light of the statutory reviewer's report. The Home Secretary and the statutory reviewer should therefore ensure that the latter's report is available to Parliament in sufficient time to allow such scrutiny before the parliamentary debate on renewal.

28. Our experience of the unsatisfactory operation of the statutory scheme for parliamentary review of control orders led us to recommend, in the separate context of pre-charge detention, that the statutory reviewer of terrorism legislation should report at least a month before any renewal debate in order to give an opportunity for proper parliamentary scrutiny and so make parliamentary review a more meaningful safeguard.[33]

29. In its response to that report, however, the Government did not respond to this recommendation.[34] Nor is it reflected in the relevant provisions of the recently introduced Counter-Terrorism Bill concerning parliamentary review of the Secretary of State's power to extend the maximum period of pre-charge detention, which are closely modelled on the very provisions in the PTA 2005 which have now failed to ensure proper parliamentary scrutiny in three consecutive years.[35] We find this failure to respond to our constructive proposals for improved parliamentary review extremely disappointing, especially in light of the renewed commitment of the Prime Minister to the importance of parliamentary oversight in relation to the unusual powers required to counter terrorism.[36]

30. We have of course considered carefully the Home Secretary's three quarterly reports to Parliament on the control orders regime since the last renewal,[37] but these do not rise much above the level of bare statistics and we therefore do not find them particularly informative. In the absence of the statutory reviewer's report, our Chair wrote to the Home Secretary on 7 February 2008 asking a number of detailed questions about the operation in practice of the control orders regime, in an attempt to ensure that we were as informed as we could be, in the circumstances, to report to Parliament before the debate about renewal in the House of Commons.[38] In view of the imminence of the renewal debate, we asked for a response by 15 February, to give us time to consider the response and still report in time.

31. We received a response to our questions on 18 February, the same day on which Lord Carlile's Third Annual Report was published.[39] In this report we have sought to take both into account in so far as possible in the very short time available.

Amendments to the control orders framework

32. In view of the Government's repetition of last year's practice of making the statutory reviewer's report available to Parliament only days before the renewal debate, despite our criticism of this practice in the previous two years, and its failure to respond to our recommendation that the independent reviewer should report at least a month before any renewal debate in the context of pre-charge detention, we are driven to conclude that the provisions of the PTA 2005 concerning parliamentary review of control orders require strengthening in order to ensure that in future there is a proper opportunity for fully informed parliamentary review of the operation of the control orders regime.

33. We recommend that parliamentary oversight of the highly unusual and intrusive powers contained in the control orders regime should be strengthened by:

i)  prescribing in more detail the information to be provided by the Secretary of State in her quarterly reports to Parliament about her exercise of the control orders power;[40]

ii)  requiring the Home Secretary to provide to Parliament, at least a month before the annual renewal debate, an annual report on the exercise of the control order powers since the last renewal;

iii)  providing for the statutory reviewer of the operation of the Act to be appointed by Parliament not the Secretary of State, so that he or she is seen to be entirely independent of the Secretary of State and to emphasise that the reviewer's function is to inform Parliament and to facilitate informed parliamentary debate;

iv)  providing for the statutory reviewer to report directly to Parliament, not to the Secretary of State (as does, for example, the Parliamentary and Health Services Ombudsman[41]);

v)  providing for the independent reviewer to report to Parliament on the operation in practice of the control orders regime and of the necessity for it, at least a month before the annual renewal debate.

34. We will be suggesting specific amendments to the PTA to ensure that these recommendations are debated in Parliament during the passage of the Counter-Terrorism Bill in our forthcoming report on that Bill.[42]

25   JCHR's Second Report on Control Order Renewal, at para. 17. Back

26   EM para. 7.11. Back

27   House of Lords Merits of Statutory Instruments Committee, 9^th Report of Session 2007-08, drawing special attention to: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2008, HL Paper 51. Back

28   Ibid at para. 4. Back

29   Lord Carlile's Third Report on Control Orders, above n. 18. Back

30   The Government's response was contained in a letter and memorandum dated 1 May 2007 from the Home Secretary's predecessor, the Rt Hon John Reid MP: see Appendix to JCHR Fourteenth Report of Session 2006-07, Government Response to the Committee's Eighth Report of this Session, HL Paper 106/HC539. Back

31   Section14(6) PTA 2005. Back

32   Letter dated 18 February 2008 from Home Secretary to Andrew Dismore, below. Back

33   Nineteenth Report of Session 2006-07, Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, HL Paper 157/HC 394 (hereafter "JCHR Report on 28 days, intercept and post-charge questioning"), at para. 63. Back

34   Cm 7215 (September 2007). Back

35   Counter Terrorism Bill, HC Bill 63, Schedule 1, para. 46. Back

36   See e.g. the Prime Minister's oral statement to the House of Commons on national security, HC Deb 25 July 2007 cols 841-845; The Governance of Britain Green Paper, Cm 7170, July 2007, para. 88; Possible Measures for Inclusion in a Future Counter-Terrorism Bill, Home Office consultation paper, 25 July 2007, paras 7-10. Back

37   Most recently on 12 December 2007 (HC Deb 12 December 2007 col 38WS). Back

38   Appendix 1. Back

39   Appendix 2. Back

40   As required by s. 14(1) PTA 2005. Back

41   Under s. 10(4) Parliamentary Commissioners Act 1967 and s. 14(4) Health Service Commissioners Act 1993. Back

42   We will be making similar recommendations in relation to the provisions in the Counter Terrorism Bill concerning parliamentary review of the exceptional power to detain without charge beyond 14 days prior to the annual renewal of that power. Back