Introduction

39. The Bill contains some detailed amendments to the control order regime contained in the Prevention of Terrorism Act 2005 ("the PTA 2005").[35] Some of these are broadly beneficial from a human rights perspective. For example, the Bill narrows the definition of "involvement in terrorism-related activity" so as to make clear that only support or assistance given directly to someone involved in terrorism-related activity is caught by the definition.[36] It makes clear that the time allowed for representations by controlled persons when a control order is made following permission from the court is seven days from the time that the order is served upon him, not seven days from the time the court gives permission.[37] It also enables the anonymity of individuals subject to control orders to be protected from the very beginning of the process when the Secretary of State is seeking the court's permission to make the control order.[38]

40. These amendments to the control orders regime, however, 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.[39] In our view, for the reasons we explain below, 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.

Special advocates and the right to a fair hearing

THE HOUSE OF LORDS JUDGMENT IN MB

41. The House of Lords recently considered, in the case of MB, the compatibility of the control order special advocate regime with the right to a fair hearing, including under Article 6(1) ECHR.[40]

42. The House of Lords held that control order proceedings do not amount to the determination of a criminal charge for the purposes of Article 6(1). The criminal trial guarantees in that Article therefore do not apply, but nevertheless the Lords held that the procedural protections must be "commensurate with the gravity of the potential consequences" for the controlled person.[41]

43. The Lords also decided, by a majority of 4-1,[42] that the procedures contained in s. 3 of the Prevention of Terrorism Act 2005 and the Rules of Court would not be compatible with the right to a fair hearing in Article 6(1) ECHR, if they permitted the essence of the case against a controlee to be entirely undisclosed to him. This accords with concerns we have repeatedly expressed about the fairness of control order proceedings.[43]

44. However, the House of Lords held that the statutory regime must be interpreted under s. 3 of the Human Rights Act so as to guarantee the right to a fair hearing, and that it was capable of being so interpreted, instead of declaring the statutory scheme to be incompatible with Article 6(1) under s. 4 of the Human Rights Act,[44] which would have provided Parliament with an opportunity to consider the detail of the procedural framework again.

45. The House of Lords has therefore left it to the courts to work out, on a case by case basis, exactly what is required to ensure that the right to a fair hearing is properly respected in the practical application of the statutory framework. In the recent case of Bullivant,[45] the difficulties presented by this in practice were demonstrated. The High Court grappled with exactly what was required to give effect to the House of Lords judgment in MB, and found considerable difficulty in deciding exactly what it requires.

46. We welcome the decision of the House of Lords in MB that it would be a breach of an individual's right to a fair hearing if a control order could be made where the essence of the case against him is entirely undisclosed to him. We have frequently made the same observation in our reports on the control order legislation. However, we are surprised at the Lords' interpretation of the scope of their power under s. 3 of the Human Rights Act to read words into a statute to avoid an incompatibility with a Convention right. In 2005, in the Prevention of Terrorism Act, Parliament grappled with how to strike the right balance between the right to a fair hearing and keeping sensitive information secret. It decided (against our advice) to strike that balance by placing a duty on courts in control order proceedings to receive and act on material even the gist of which is not disclosed to the controlled person. It used mandatory language to make that intention clear.[46] To weaken Parliament's clear mandatory language by "reading in" the words "except where to do so would be incompatible with the right of the controlled person to a fair trial"[47] does, as Lord Bingham observed, "very clearly fly in the face of Parliament's intention."[48]

47. The scheme of the Human Rights Act deliberately gives Parliament a central role in deciding how best to protect the rights protected in the ECHR. Striking the right balance between sections 3 and 4 of the Human Rights Act is crucial to that scheme of democratic human rights protection. In our view it would have been more consistent with the scheme of the Human Rights Act for the House of Lords to have given a declaration of incompatibility, requiring Parliament to think again about the balance it struck in the control order legislation between the various competing interests. In any event, we think it is now incumbent on Parliament to consider again, in detail, exactly what a "fair hearing" requires in this particular context, in light of the House of Lords judgment, and to amend the control order legislation accordingly.

THE FAIRNESS OF THE SPECIAL ADVOCATE REGIME

48. In our recent report in July 2007 in which we considered the fairness of the special advocate system, we reached the firm conclusion that the system of special advocates, as currently conducted, fails to afford individuals a fair hearing, or even a substantial measure of procedural justice.[49] We made a number of recommendations about the minimum changes which are required to improve the fairness of the process, principally:

• that the Secretary of State be placed under a statutory obligation always to provide a statement of the gist of the closed material;
• that the prohibition on any communication between the special advocate and the individual (or their legal representative) after the special advocate has seen the closed material be relaxed;
• that the low standard of proof in SIAC proceedings be raised.

49. The Government, in its Reply to our Report, rejected all of our recommendations concerning the special advocates regime:

The Government believes that the existing special advocate procedure provides individuals with a substantial measure of procedural justice, and that the recommendations of the Committee are not required to achieve this - indeed, that the recommendations of the Committee, if implemented, could potentially be damaging to the public interest, including to the extent of endangering the lives of members of the public.[50]

50. That this was the Government's position was not at all surprising at the time: it had recently sought to persuade the House of Lords that control order proceedings were fair and judgment was awaited. That judgment, in the MB case, now requires the Government's earlier position to be revisited, because it rejects the Government's assertion that the statutory regime will always provide the individuals concerned with a substantial measure of procedural justice.

51. We were particularly disappointed, then, to learn from the Minister that when he finally met with some special advocates, they concentrated on "practical issues concerning the operation of the special advocate procedure and ensuring it worked as efficiently and effectively as possible, rather than the concerns of principle that you have previously raised with the Government, and on which we continue to differ."[51] The main outcome of the meeting was that the Government agreed to consider whether it would be possible to expand the training course already available to special advocates to cover concerns the special advocates had about remaining gaps in their knowledge. The Minister's meeting with the special advocates took place on 3 December 2007, more than a month after the decision of the House of Lords in MB. As we have explained, that judgment rejects the Government's assertion that the special advocate regime always provides individuals with a substantial measure of procedural justice, and agrees with a number of the concerns about the fairness of control order proceedings expressed in evidence to us by the special advocates. We think it is a matter of great regret that the Minister did not see fit to discuss these issues of principle with the special advocates at their meeting with a view to the Government bringing forward amendments to the statutory regime in light of the judgment.

52. We decided to seek further evidence from some special advocates, to explore with them the extent to which there is scope to make specific amendments to the legal framework which governs control order hearings in order to make them fairer in practice; and to ensure that we are fully informed of the possible practical consequences of possible amendments.

53. Although willing in principle to give evidence to a parliamentary committee on this subject, many of the special advocates felt that their involvement in ongoing control order cases considering the precise effect of the MB judgment gave rise to a potential conflict of interest which inhibited them from giving evidence. We understood and respected this concern. We took evidence from a special advocate, Mr Neil Garnham QC, who was not so constrained, because he is not involved in any control order cases, all of his work as a special advocate to date having been conducted in SIAC.[52] Mr. Garnham though it would be helpful for Parliament to clarify the statutory framework in the light of the recent House of Lords judgment,[53] and assisted us greatly in identifying some of the improvements to the procedure which would most enhance its fairness.

54. In our view the opportunity should be taken in this Bill to make a number of amendments to the control order regime in order to ensure that, in future, hearings are much more likely to be fair.

AMENDMENTS TO THE CONTROL ORDERS REGIME TO MAKE HEARINGS FAIR

(1) Express reference to the right to a fair hearing

55. According to the majority in MB, restrictions on disclosure may be justifiable, but not where the effect of such non-disclosure is to deprive a person of their liberty, or to impose other serious restrictions upon them, on the basis of material which is not disclosed to them even in summary form. However, on the face of the statutory framework, including the rules of court, a judge in control order proceedings is precluded from ordering disclosure, even where he considers that disclosure is essential in order to give the controlled person a fair hearing. To avoid that consequence, the House of Lords ruled that the following qualifying words had to be "read in" to the absolute and unqualified words of the statute: "except where to do so would be incompatible with the right of the controlled person to a fair trial."[54]

56. Mr. Garnham told us in evidence that he could "see good sense" in using the words "read in" to the statutory framework by the House of Lords and making them explicit in the statute, rather than leaving them in case-law.[55]

57. We recommend two amendments to the control orders statute (the Prevention of Terrorism Act 2005) to achieve this.

58. First, we recommend 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".[56]

59. Second, we recommend 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.[57]

60. This could be achieved by inserting a new paragraph[58] in the Schedule to the PTA 2005: "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."

61. The effect of this amendment would also be to render ultra vires rule 76(2) of the Civil Procedure Rules ("CPR"), which expressly elevates non-disclosure over justice by requiring that in control order cases the overriding objective of the civil procedure rules (requiring courts to deal with cases justly) be read and given effect in a way which is compatible with the duty to ensure that information is not disclosed contrary to the public interest. Baroness Hale expressly disagreed with this provision in her judgment in MB,[59] as have we, in earlier reports.

(2) Obligation to give reasons for making control order

62. One of the ways mentioned by Baroness Hale in her judgment in MB,[60] 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[61] are made out.

63. In his evidence to us, Neil Garnham QC agreed that such an obligation on the Secretary of State would make control order proceedings fairer; but he anticipated the Security Service's objection that this would lead to disclosure which is potentially damaging to national security.[62] 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.

64. We recommend that an obligation on the Secretary of State to give reasons for the making of a control order be inserted into the statutory framework.[63]

(3) Obligation to provide gist of closed material in some cases

65. According to the judgments of the majority in MB, the concept of fairness imports a core irreducible minimum of procedural protection.[64] 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. Mr Garnham foresaw considerable objection to this proposal from both the Security Services and the Home Office, but did not see that as a reason for not going ahead, and considered it "an entirely sound proposal".[65]

66. To give full effect to the judgment in MB, we recommend 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."[66]

(4) Communication between special advocate and controlee

67. Mr. Garnham told us in evidence that of all the matters raised by us about the fairness of control order proceedings, communication between the special advocate and the appellant is the "most critical".[67] He described it as "a pretty essential step", provided some mechanism can be devised for achieving it, because what exists at the moment is "pretty hopeless", as it requires advance notice to the Secretary of State of the questions the special advocate wants to pose to the controlee.

68. Mr Garnham suggested that special advocates should have the power to apply ex parte (that is, without the Secretary of State being present or represented) to a High Court judge for permission to ask questions of the controlee, which would avoid having to disclose significant parts of their case to the Security Service. This would be a substantial change, because it would mean for the first time special advocates could find a way of putting questions to the person whose interests they are trying to represent without having to disclose those questions to the Secretary of State.[68]

69. In our view the statutory framework requires amendment, to enable the controlled person to give meaningful instructions about the allegations against him, where it is possible to do so.[69] We recommend that special advocates be given the power to apply ex parte to a High Court judge for permission to ask the controlee questions, without being required to give notice to the Secretary of State.[70]

(5) Standard of proof

70. Mr. Garnham told us that it has long been the view of all of the special advocates that changing the standard of proof to "balance of probabilities" rather than "mere suspicion" is "entirely justified."[71] He also thought it would make a real practical difference in some cases.[72] The standard of proof was not expressly considered by the House of Lords in MB, but the judgments make clear that the standards of procedural protection (which must include the standard of proof) are to be commensurate with the seriousness of the consequences for the controlee. In our view this should be made clear in the legislation itself.

71. We recommend that the PTA 2005 be amended to provide that, 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 (including, for example, the appropriate standard of proof) as is commensurate with the gravity of the potential consequences of the order for the controlled person.[73]

(6) Power for special advocates to call witnesses

72. One of the ways suggested by Baroness Hale in MB to make the hearing fairer was to permit special advocates to call witnesses to rebut closed material.[74] Although we heard that expert witnesses to assist special advocates are not readily available, because all those who are going to be any good are already working for the Security Service,[75] Mr. Garnham agreed that it might be useful to have it made absolutely clear that special advocates are empowered to call witnesses in control order proceedings.[76]

73. We recommend that the PTA 2005 be amended to provide that, where permission is given by the relevant court not to disclose material, special advocates may call witnesses to rebut the closed material.[77]

36   Clause 72, amending s. 1(9) PTA 2005. Back

37   Clause 73, amending s. 3 PTA 1005. Back

38   Clause 74, amending para. 5 of the Schedule to the PTA 2005. Back

39   Secretary of State for the Home Department v JJ [2007] UKHL 45; Secretary of State for the Home Department v MB [2007] UKHL 46; Secretary of State for the Home Department v E [2007] UKHL 47 (31 October 2007). Back

40   Secretary of State for the Home Department v MB [2007] UKHL 46 (31 October 2007). Back

41   Ibid., Lord Bingham at para. 24. Back

42   Ibid., Lord Hoffmann dissenting. Back

43   See e.g. chapter 6 of our Report on 28 days, above, concerning special advocates, and our reports on the annual renewal of the control orders regime: Twelfth Report of Session 2005-06, Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006, HL Paper 122, HC 915; Eighth Report of Session 2006-07, Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2007, HL Paper 60, HC 365. Back

44   A declaration of incompatibility would have been Lord Bingham's preference: see MB para. 44. Back

45   Re Bullivant [2007] EWHC 2938 (Admin) (11 December 2007). Back

46   See e.g. para. 4(3)(d) of the Schedule to the PTA 2005: "Rules of court … must secure … that the relevant court is required to give permission for material not to be disclosed where it considers that the disclosure of the material would be contrary to the public interest." Back

47   Secretary of State for the Home Department v MB [2007] UKHL 46, at para. 72 (Baroness Hale). Back

48   Ibid. at para. 44 (Lord Bingham). Back

49   Report on 28 days, above, at paras 183-212. Back

50   The Government Reply to the Nineteenth Report from the Joint Committee on Human Rights Session 2006-07: Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, CM 7215, September 2007 at pp. 15-16. Back

51   Letter from Tony McNulty MP to the Chair, 14 December 2007, Appendix 7. Back

52   Oral evidence, 17 December 2007. Back

53   Ibid. Q31, Ev 7. Back

54   Secretary of State for the Home Department v MB [2007] UKHL 46, at para. 72 (Baroness Hale). Back

55   Oral evidence, 17 December 2007, Q32, Ev 8. Back

56   E.g. in s. 3(13) PTA 2005 and paras 4(2)(a) and (3)(d) of the Schedule to the PTA 2005. Similar qualifying words would also have to be inserted into CPR r. 76.29(8), but this obviously is not a matter for the Bill. Back

57   Clause 58(6). Back

58   New para. 4(6). Back

59   Secretary of State for the Home Department v MB [2007] UKHL 46, at para. 59 (Baroness Hale). Back

60   Ibid. at para. 66. Back

61   In s. 2(1) PTA 2005. Back

62   Oral evidence, 17 December 2007, Qs 33, 34. Back

63   E.g. by inserting (as new s. 2(4A) PTA 2005): "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." Back

64   See e.g. Secretary of State for the Home Department v MB [2007] UKHL 46 at para. 43 (Lord Bingham). Back

65   Oral evidence, 17 December 2007, Q23, Ev 6. Back

66   In para 4(3)(e) of the Schedule to the PTA 2005. Para 4(3)(f) would also need amending to make it subject to para 4(3)(e) as amended. Back

67   Oral evidence, 17 December 2007, Q23, Ev 6. Back

68   Ibid. Q36, Ev 8. Back

69   See e.g. Secretary of State for the Home Department v MB [2007] UKHL 46 at para. 35 (Lord Bingham). Back

70   This is also likely to require amendment of CPR r. 76.25(2). Back

71   Oral evidence, 17 December 2007, Q23, Ev 7. Back

72   Ibid. Q24. Back

73   New s. 3(11A) PTA 2005, using the formulation of Lord Bingham in MB at para. 24. Back

74   Secretary of State for the Home Department v MB [2007] UKHL 46 at para. 66. Back

75   Oral evidence, 17 December 2007, Q37. Back

76   Ibid. Q38, Ev 8. Back

77   This would require a new sub-para in para 4(3) of the Schedule to the PTA 2005. Back