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Joint Committee On Human Rights Twentieth Report

6 Control Orders

Background

67. The Bill contains some detailed amendments to the control orders regime contained in the Prevention of Terrorism Act 2005.[45] However, as we noted in our first report on the Bill, these amendments are largely in the nature of relatively minor "tidying up" amendments in the light of the first few years of the regime's operation. They do not address at all the most controversial aspects of the control orders regime which have been the subject of intense parliamentary debate; frequent adverse comment by us; and now, important judgments of the House of Lords in the first cases concerning control orders to reach them.[46]

68. We pointed out in our previous report that the Bill provides an opportunity for Parliament to rectify some of the most significant defects in the control orders regime which have been identified in the course of the many legal challenges to that regime and to particular orders made under it. We have also indicated, in both that report and our report on this year's renewal of the control orders legislation, a number of amendments to the control orders regime which in our view are necessary to render it human rights compatible. In its response to our report on control orders, the Government disagrees that there is any need to amend the control orders legislation. In its view, "as a result of the House of Lords' judgments in October 2007, the control orders legislation is fully compliant with the European Convention on Human Rights."

69. In this part of our report we bring together the most significant of the amendments that we have proposed to the control orders regime and provide suggested text for such amendments.

The priority of prosecution

70. In our report on this year's renewal of the control orders legislation, we welcomed the Government's professed policy that prosecution is and will remain its preferred way of dealing with terrorists (we refer to this as the policy of "the priority of prosecution"). We also welcomed the fact that since last year's renewal of the control orders legislation the Government has taken some steps towards facilitating prosecutions of individuals for offences relating to terrorism. However, we considered it significant that no individual who has been made the subject of a control order has subsequently been prosecuted for a terrorism offence, other than for breach of a control order. We therefore questioned the extent to which, in relation to certain individuals, priority is really given to criminal prosecution rather than the extensive and indefinite control which is currently available through the use of control orders.

(1) making it a new pre-condition of the making of a control order that the Secretary of State be satisfied that there is no reasonable prospect of a successful prosecution for a terrorism-related offence;

(2) imposing new duties on the Secretary of State to keep the possibility of prosecution under review and to facilitate such review by sharing relevant information with the police; and

(3) increasing the transparency of decisions about prosecution by requiring the giving of reasons for a decision not to prosecute and providing for disclosure of those reasons to the controlled person to the extent that such disclosure would not be contrary to the public interest.

72. The Government does not agree that any amendments to the control orders framework are necessary to make its policy of the priority of prosecution more effective. It points to improvements in procedures in relation to prosecution that it has put in place in response to recommendations by Lord Carlile and various court judgments, such as the quarterly review of the possibility of prosecution by the Control Order Review Group, the greater detail provided in the letters from the police to the Home Office explaining the police's conclusion about prosecution, and new procedures which have been put in place in relation to the ongoing prospect of prosecution. It also relies on the decision of the House of Lords in E as having clarified the extent of the Secretary of State's duties in relation to prosecution and as making clear that no amendments to the Prevention of Terrorism Act 2005 are necessary.

(1) NEW PRECONDITION FOR MAKING OF CONTROL ORDER

73. The Government points out that the decision on whether or not to prosecute a particular individual is an operational matter for the police and the Crown Prosecution Service, not the Secretary of State. To make it a precondition of the making of a control order that the Secretary of State must be satisfied that there is no reasonable prospect of a successful prosecution would therefore, the Government argues, undermine the role of the independent prosecuting authorities.

74. We accept that the question of whether there is a reasonable prospect of prosecution is not, constitutionally speaking, a matter for the decision of the Secretary of State. However, the purpose of our recommendation was to seek to ensure that control orders are only resorted to in cases where a proper decision about the prospects of a prosecution has first been made by the relevant decision-maker. We remain concerned that a mere procedural duty on the Secretary of State to consult the police about the prospect of prosecution, which is not even a condition precedent to the making of the order, is a very weak way of trying to ensure that prosecution is the instrument of first resort. We cannot see any objection in principle to making it a precondition to the making of a control order by the Secretary of State that the DPP has certified that on the material then available there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence.

75. The Government also invokes the "strong practical reasons" cited by the House of Lords in E for not making it a condition precedent of the making of a control order that there be no realistic prospect of prosecution. The House of Lords said that there may be a need to act with great urgency and that such a condition precedent could potentially emasculate what was intended by Parliament to be an effective procedure. However, as we pointed out in our report on this year's renewal of the control orders legislation, most control orders are made using the non-urgent procedure (only one control order was made using the urgent procedure in 2007), and the concern about preserving the efficacy of control orders in urgent cases can be easily accommodated by making an exception for urgent cases.

76. We therefore recommend that the PTA 2005 should be amended to provide that, except in urgent cases, the Secretary of State may only make a control order where the DPP has certified that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence. We suggest the following wording to give effect to this recommendation:

New clause

'Control orders: pre-conditions

After sub-paragraph (b) in section 2(1) of the Prevention of Terrorism Act 2005 there is inserted -

"; and (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.".'

77. We accept that this goes beyond what is required by the judgment of the House of Lords in E. Our purpose here is to strengthen the control orders framework in pursuit of the important goal that control orders are only resorted to in cases where criminal prosecution is simply not possible, as required by the principle of proportionality.

(2) DUTY TO KEEP POSSIBILITY OF PROSECUTION UNDER REVIEW

78. The Government does not agree with our recommendation that an express duty be imposed on the Secretary of State to ensure that the question of whether there is a reasonable prospect of successfully prosecuting the subject of a control order for a terrorism-related offence is kept under review at least every 3 months. The Government argues that prosecution is the responsibility of the police and the CPS and that the police are already under an obligation to keep the possibility of prosecution under review and to consult the CPS "as appropriate". The result of the mandatory review by the police is then fed into the Control Order Review Group, consisting of law enforcement agencies and the Home Office, which meets quarterly to review the possibility of prosecution. The Government also considers it unnecessary to impose a duty on the Secretary of State to consult the police before reviewing the prospects of prosecution and to share with the police any information available to her which is relevant to the prospects of a successful prosecution. The Government says that the House of Lords in the case of E has made clear the extent of the Secretary of State's duties under s. 8 of the Prevention of Terrorism Act 2005 and that no changes to this section of the Act were required by the judgment.

79. In the E case the Secretary of State's 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 year's 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 be better served if these implied duties recognised by the courts, in the face of the Government's argument to the contrary, were turned into express duties spelled out clearly on the face of the legislation. We suggest the following amendment to give effect to this recommendation:

New clause

'Control orders: ongoing review of possibility of prosecution

After subsection (6) of section 8 of the Prevention of Terrorism Act 2005 there is inserted -

"(6A) The Secretary of State shall, throughout the period during which the control order has effect

(a) ensure that the question of whether there is a reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence is kept under review at least every 3 months;

(b) consult the police prior to such review;

(c) share with the police such information as is available to him which is relevant to the prospects of a successful prosecution.".'

(3) TRANSPARENCY OF PROSECUTION DECISIONS

80. The Government does not accept our recommendations for making prosecution decisions more transparent by requiring the police to provide reasons when advising the Secretary of State that there is no realistic prospect of prosecution and by requiring such reasons to be disclosed to the controlled person to the extent that such disclosure is not contrary to the public interest. The Government does not consider it appropriate for any further detail to be included in the letters from the police, and argues that it would be "highly unusual" to provide reasons for not proceeding with the prosecution of a particular individual to that individual, and could risk prejudicing future prosecutions.

81. In our view, however, the imposition of a control order is itself a highly unusual step, and since the scheme of the Act is that such unusual orders should only be made where an individual cannot be prosecuted for a terrorism-related offence, providing the reasons for not prosecuting the person who is the subject of the order is an essential part of justifying the making of the control order. We therefore maintain our recommendation that the PTA 2005 be amended to secure greater transparency of decisions that prosecution is not possible. We suggest the following amendment to give effect to this recommendation.

New clause

'Control orders: reasons for decisions on prospects of prosecution

After subsection (2) of section 8 of the Prevention of Terrorism Act 2005 there is inserted -

"(2A) If the chief officer advises the Secretary of State that there is no realistic prospect of prosecution, he shall give reasons for his view.

(2B) The chief officer's reasons shall be disclosed to the controlled person to the extent that such disclosure would not be contrary to the public interest.".'

Deprivation of liberty

(1) CLARIFY THE MEANING OF 'DEPRIVATION OF LIBERTY' IN ARTICLE 5 ECHR

82. In our report on this year's annual renewal of the control orders legislation we recommended that the PTA be amended to clarify the approach to be taken by courts to the question whether the effect of a control order is to deprive a person of their liberty in the sense required by Article 5 ECHR, for example by spelling out the factors to which the courts must have regard when deciding whether there is a deprivation of liberty.

83. The Government considers that such an amendment is unnecessary, because the European Court of Human Rights has already made this clear, and this has also been reflected in the judgments of domestic courts, including the House of Lords.

84. As the Government also points out, however, the majority of the House of Lords in JJ treated the length of the curfew as being of "prime importance" in determining whether there was a deprivation of liberty. As we said in our recent report on control orders, in our view this approach does not reflect the true nature of the approach taken by the European Court of Human Rights when determining whether a variety of restrictions on an individual amount to a deprivation of liberty. Although the period of daily confinement will be an important factor in any overall assessment, it should not be treated as being of "prime importance" in determining whether a control order amounts to a deprivation of liberty: the Strasbourg approach to Article 5 requires a much more nuanced assessment of the overall effect of the various restrictions on the individual's liberty.

85. We therefore maintain our recommendation that this Bill be used to amend the PTA to clarify the approach to be taken by courts when deciding whether the effect of a control order is to deprive of liberty in the Article 5 ECHR sense. We suggest the following amendment to give effect to this recommendation:

New clause

'Control orders: cumulative effect of restrictions relevant to determination about deprivation

After subsection (10) of section 3 of the Prevention of Terrorism Act 2005 there is inserted -

"(10A) In determining whether the effect of a non-derogating control order is to deprive a person of their liberty, the factors to which the court shall have regard must include,

(a) the nature, duration, effects and manner of implementation of the restrictions, and

(b) the cumulative effect of the obligations.

10B) The combination of obligations may amount to a deprivation of liberty even if no individual obligation amounts to such a deprivation.".'

86. As well as clarifying the function of the court when supervising the making of a control order under s. 3(10) PTA 2005, such an amendment would also remove any scope for misunderstanding caused by the reference in s. 3(10)(b) to the court's function being to determine whether the Secretary of State's decisions on the imposition of each of the obligations imposed by the order was flawed.

(2) 12 HOUR LIMIT ON DAILY LENGTH OF CURFEW

87. We also recommended that the PTA should be amended to impose a maximum daily limit of 12 hours on the curfew which can be imposed in a control order, to make it less likely that control orders will be found to be in breach of Article 5.

88. The Government disagrees. It claims that introducing a maximum curfew of 12 hours for controlled individuals would "significantly damage the Government's ability to protect the public from the threat of terrorism." We note, however, that the Government cites no evidence in support of this assertion and that for some time the Home Secretary had reduced the curfews in the most onerous control orders from 18 to 12 hours in light of the judgments of the lower courts. We would expect to see some evidence of the significant damage done to the public's protection against the threat of terrorism during this period to substantiate the Government's assertion.

89. The Government also states that introducing a maximum curfew of 12 hours is not necessary as a matter of law because a majority in JJ effectively held that a 16 hour curfew would not breach Article 5. As we stated in our report on control orders, we find Lord Brown's indication in JJ, that in his view 16 hour curfews would not amount to a deprivation of liberty, to be a very slender legal basis on which to increase the curfews in existing control orders from 12 to 16 hours. We remain of the view that, in the wake of clear judicial differences of view about what is an appropriate maximum daily curfew, it is incumbent on Parliament to reach its own view about what the right to liberty in Article 5 ECHR requires in this particular context and we maintain our recommendation that a maximum daily limit on curfews should be 12 hours. We suggest the following amendment to give effect to this recommendation.

New clause

'Control orders: maximum limit on daily curfews

After subsection (5) of section 1 of the Prevention of Terrorism Act 2005 there is inserted -

"(5A) The duration of any prohibition or restriction on the controlled person's movements shall not exceed 12 hours in any 24 hour period.".'

Due process

90. In our first report on the Counter-Terrorism Bill we explained why, in our view, the opportunity should be taken in this Bill to make a number of amendments to the control order regime to ensure that in future hearings are much more likely to be fair. We recommended six amendments to the legal framework for control orders designed to have that effect:

(1) the insertion of an express reference to the right to a fair hearing, making clear that nothing in the PTA requires a court to act incompatibly with the right of a controlled person to a fair hearing;

(2) the addition of an obligation on the Secretary of State to give reasons for the making of a control order;

(3) the imposition of an obligation on the Secretary of State to provide a statement of the gist of any closed material on which fairness requires the controlled person have an opportunity to comment;

(4) provision for judicially authorised communication between the special advocate and the controlled person without having to disclose the questions to the Secretary of State;

(5) the insertion of an entitlement of the controlled person to such measure of procedural protection (including the standard of proof) as is commensurate with the gravity of the potential consequences for the controlled person; and

(6) the provision of a power for special advocates to call witnesses to rebut closed material.

91. The Government has rejected our recommendation that it is necessary for Parliament to reconsider what constitutes a "fair hearing" in this particular statutory context, in light of the judgment of the House of Lords in the MB case. The Government's argument, in short, is that Parliament has already decided what is required to provide a fair hearing in the Prevention of Terrorism Act 2005, and this has now been supplemented by the House of Lords in the MB judgment to render Parliament's framework compatible with the requirements of Article 6 ECHR. In the Government's view, the requirements of the existing statutory framework, as reinterpreted by the House of Lords in MB, are now clear and satisfy the requirements of Article 6 in all cases: "the effect of the MB judgment is to ensure the procedures set out in the 2005 Act are compliant with Article 6 in every case." Our detailed recommendations as to how to amend the statutory framework to ensure that control order proceedings are "fair" in future are all rejected as either "unnecessary" or not required by the judgment in MB. The Government also states that it continues to disagree with our conclusion in our July 2007 report, "that the system of special advocates, as currently conducted, fails to afford individuals a fair hearing, or even a substantial measure of procedural justice."

92. Some of the criticisms made by us, however, were upheld by the House of Lords in MB. As we pointed out in our first report on this Bill, the House of Lords in MB rejected the Government's argument that the statutory regime will always provide the individuals concerned with a substantial measure of procedural justice. The Government's assertion that it is unnecessary to amend the statutory framework in the light of the judgment in MB also ignores the evidence of the special advocates of the potential unfairness inherent in the current regime, as well as the obvious judicial difficulty in working out exactly what the House of Lords judgment in MB requires.[47] Indeed, in July this year the Court of Appeal will be hearing three appeals from decisions of the High Court in control order cases in which the principal issue is precisely what is required by the decision of the House of Lords in MB. It seems likely that the fairness of the operation of the control order regime will before long be back before the House of Lords. This constant litigation about the fundamentals of the statutory framework cannot be desirable, particularly where in the meantime individuals are subjected to very onerous restrictions and obligations. The case for legislative clarification is in our view compelling.

93. We accept that some of our recommendations are not required by the judgment in MB. However, in our view the Bill provides an opportunity for Parliament to improve the statutory framework of control orders in order to reduce the risk of procedural unfairness which the operation of the regime in practice has revealed.

(1) EXPRESS REFERENCE TO THE RIGHT TO A FAIR HEARING

95. First, we recommended that the relevant provisions in the statutory framework, which expressly require non-disclosure, even where disclosure would be essential for a fair hearing, be amended by the insertion of qualifying words, such as "except where to do so would be incompatible with the right of the controlled person to a fair hearing".

96. Second, we recommended that the relevant power for making rules of court in the control orders regime be amended to make explicit reference to the right to a fair hearing in Article 6 ECHR, in the same way as the Bill itself qualifies the power to make rules of court for asset freezing.[48]

97. The Government says that these amendments are not necessary because the judgment in MB already makes this clear. We do not agree that the effect of the judgments in MB are as clear as the Government contends, as is borne out by the continued litigation and appeals about precisely what the case requires. We remain of the view that it is better that words appear on the face of a statute than that they are "read in" to the statute by a judgment the precise effect of which might not be very clear even after careful study. We suggest the following amendment to give effect to these recommendations.

New clause

'Control orders: right to a fair hearing

"(1) At the end of subsection (13) of section 3 of the Prevention of Terrorism Act 2005 there is inserted -

'except where to do so would be incompatible with the right of the controlled person to a fair hearing'.

(2) At the end of paragraph 4(2)(a) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted -

'except where to do so would be incompatible with the right of the controlled person to a fair hearing'.

(3) At the end of paragraph 4(3)(d) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted -

'except where to do so would be incompatible with the right of the controlled person to a fair hearing'.

(4) After paragraph 4(5) in the Schedule to the Prevention of Terrorism Act 2005 there is inserted -

'(6) Nothing in this paragraph, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with the right to a fair hearing in Article 6 of the European Convention on Human Rights.".'

(2) OBLIGATION TO GIVE REASONS FOR MAKING CONTROL ORDER

99. The Government disagrees, arguing that this was not a requirement of the judgment in MB as being necessary to provide individuals with a substantial measure of procedural justice. In fact, one of the ways mentioned by Baroness Hale in her judgment in MB,[49] to ensure that the principles of judicial inquiry are complied with to the fullest extent possible, is for the Secretary of State to give as full as possible an explanation of why she considers that the grounds for making a control order[50] are made out.

100. As we commented in our first report on this Bill, we consider that an explicit obligation on the Home Secretary to give as full an explanation as possible of her reasons for making a control order would both provide the controlee with some material which he may be able to contest and would facilitate more open judicial scrutiny of the adequacy of the Home Secretary's reasons for making an order. We therefore maintain our recommendation that the control orders framework be amended to include an obligation on the Secretary of State to give reasons for the making of a control order. We suggest the following amendment:

New clause

'Control orders: obligation to give reasons

After subsection (4) of section 2 of the Prevention of Terrorism Act 2005 there is inserted -

"(4A) A non-derogating control order must contain as full as possible an explanation of why the Secretary of State considers that the grounds in s. 2(1) above are made out.".'

(3) OBLIGATION TO PROVIDE GIST OF CLOSED MATERIAL IN SOME CASES

101. In earlier reports, we have recommended that there should be an obligation on the Secretary of State to provide a statement of the gist of the closed material. According to the judgments of the majority in MB, the concept of fairness imports a core irreducible minimum of procedural protection.[51] To give full effect to the judgment in MB, we therefore recommended that the statutory framework be amended to provide that rules of court for control order proceedings "must require the Secretary of State to provide a summary of any material which fairness requires the controlled person have an opportunity to comment on."

102. The Government disagrees. It argues that this was not a requirement of the judgment in MB and that the mandatory provision of the gist of closed material would not be a desirable change. It says that the effect of MB is not that the Secretary of State must provide a summary of any material which fairness requires the controlled person have an opportunity to comment on. Rather, the Secretary of State may be made to choose whether to disclose information which the court concludes it is necessary to disclose in order for the controlled person to have a fair hearing, or withdraw it from the case so that it cannot be relied upon by the Secretary of State.

103. We remain of the view that MB requires the Secretary of State to provide the gist of any closed material on which she intends to rely and on which fairness demands the controlled person has an opportunity to comment. It is true that the Secretary of State may prefer to withdraw the closed material from the case, but this is a consequence of the requirement that the gist of the closed material be disclosed because fairness requires an opportunity to comment. We suggest the following amendment to give effect to our recommendation:

New clause

'Control orders: obligation to provide gist of closed material

'(1) At the end of paragraph 4(3)(e) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted -

'and must require the Secretary of State to provide a summary of any material on which he intends to rely and on which fairness requires the controlled person have an opportunity to comment'.

(4) COMMUNICATION BETWEEN SPECIAL ADVOCATE AND CONTROLEE

105. The Government disagree that this is a requirement of the judgment in MB and does not believe "unfettered communication" between the individual and the special advocate after service of the closed material is a desirable change.

106. Our recommendation was not that there should be "unfettered communication" between controlees and special advocates but that a process be put in place to enable the controlled person to give meaningful instructions about the allegations against him when it is possible to do so, without having to disclose anything to the Secretary of State. We suggest the following amendment:

New clause

'Control order: communications between special advocate and controlled person

After subparagraph 7(5) in the Schedule to the Prevention of Terrorism Act 2005 there is inserted -

"(5A) Rules of court must secure that persons appointed under this paragraph may apply to a High Court judge, without notice to the Secretary of State, for permission to communicate with the controlled person after the service of closed material.".'

(5) STANDARD OF PROOF

108. The Government disagrees with our recommendation, arguing that a change in the statutory test of reasonable suspicion was not a requirement of the judgment in MB and would not be desirable. The judgments in MB make clear that the standards of procedural protection are to be commensurate with the seriousness of the consequences for the controlee, and in our view this must include the standard of proof. We consider that this should be made clear in the legislation itself. The following amendment would give effect to this recommendation.

New clause

'Control orders: proportionality of procedural protection

After subsection 3(11) of the Prevention of Terrorism Act 2005 there is inserted -

"(11A) In a hearing to determine whether the Secretary of State's decision is flawed, the controlled person is entitled to such measure of procedural protection as is commensurate with the gravity of the potential consequences of the order for the controlled person.".'

(6) POWER FOR SPECIAL ADVOCATES TO CALL WITNESSES

110. The Government states that it is already open "in principle" to special advocates to apply to the court to call expert witnesses, and in any event special advocates receive training from the Security Service to enable them to understand the closed evidence.

111. As far as we are aware there is no legal basis for special advocates to call expert witnesses to rebut closed material in control order proceedings. Nor do we consider that training of the special advocates by the Security Service is an adequate substitute for the ability to call expert witnesses. We consider that the control order statute should be amended to give effect to one of the ways suggested by Baroness Hale in MB to make the hearing fairer by permitting special advocates to call witnesses to rebut closed material, and we suggest the following amendment to achieve this.

New clause

'Control orders: Power of special advocates to call expert witnesses

After paragraph 4(3)(e) of the Schedule to the Prevention of Terrorism Act 2005 there is inserted -

"(ea) that, where permission is given by the relevant court not to disclose material, persons appointed under paragraph 7 may call witnesses to rebut the closed material.".'

Maximum duration of control orders

112. In our report on this year's annual renewal of control orders we stated that we are in favour of a maximum limit on the duration of a control order, both as an important safeguard of the liberty and mental health of the individuals concerned, and as a discipline on the investigative and enforcement authorities to find material capable of being the basis for a criminal prosecution within a reasonable time.

113. The Government does not agree. It accepts that control orders should be imposed for as short a time as possible, commensurate with the risk, but does not accept that there should be "an arbitrary end date for individual control orders." It argues that if the Government considers it necessary and proportionate to extend a control order in order to protect the public from a risk of terrorism, it is the Government's responsibility to do so, and points to the danger of individuals merely disengaging from terrorist activity for the duration of a control order and then re-engaging when it expires.

114. We remain of the view that there should be a maximum limit on the duration of a control order, for the reasons we gave in our earlier report. As we pointed out in that report, human rights law does not provide any clear answer as to what that limit should be, beyond prohibiting severe controls of indefinite duration. We believe it is desirable that Parliament should debate the principle of whether control orders should have a maximum duration and, if so, whether there should be provision for any exception to that limit. We therefore suggest the following amendment in order to give Parliament an opportunity to debate the issue in principle:

New clause