Our report
12. In this report we indicate in general terms what
those amendments are. We will make more specific suggestions about
how the legislation should be amended to give effect to those
recommendations in our next Report on the Counter-Terrorism Bill
which we hope to publish before the Bill reaches its Report stage
in the Commons.
13. We approach
the question of the renewal of control orders in full agreement
with the Government about the importance of the positive obligation
imposed on the Government by human rights law, to take effective
steps to protect the public from the real threat of terrorism.
We also agree that it is essential to keep our counter-terrorism
legislation under constant review, for two reasons: first, to
ensure that the authorities are properly equipped to respond effectively
to the current threat and so protect the public; and, second,
in the light of experience, to ensure that the counter-terrorism
measures which are in place are not themselves incompatible with
human rights, or used in practice in a way which breaches human
rights. Counter-terrorism measures which breach human rights are
ultimately counter-productive and therefore worse than ineffective
in countering terrorism: they risk exacerbating the problem. In
our view it is therefore imperative that the Government's recent
review of counter-terrorism law leads not only to proposals to
take new powers where they are shown to be necessary in order
to protect the public from terrorism, but also to amendments to
existing counter-terrorism laws where experience has shown them
to lead to breaches of human rights.
14. As we recently indicated in our Report on the
main human rights issues raised by the Counter-Terrorism Bill,
we are disappointed that the Bill does not contain any measures
to rectify some of the most significant human rights concerns
about the operation of the control orders regime which have been
identified in the course of the many legal challenges both to
the regime itself and to particular orders made under it.[13]
In our previous reports on control orders, we have consistently
raised a number of human rights concerns about the control orders
legislation, in particular:
- The lack of opportunity for
proper parliamentary scrutiny of the operation of control orders
in practice[14]
- The severe extent of the obligations imposed
by control orders which have appeared to us to be so restrictive
as to amount to a deprivation of liberty, in breach of Article
5 ECHR[15]
- The deficiencies in the adequacy and practical
effectiveness of the due process safeguards in the control orders
regime, and in particular the lack of opportunity to challenge
closed material, fail to secure the "substantial measure
of procedural justice" required by Article 6 ECHR and the
common law right to a fair hearing[16]
- The seriousness of the Government's commitment
to prosecution as its first preference before resorting to control
orders, in light of the lack of continuing investigation of controlled
individuals with a view to prosecution, and the lack of effective
systems to keep the prospects of prosecution under review.[17]
15. In our view, many of the concerns that we have
previously expressed have been brought into sharper focus by recent
court decisions. This report builds on our earlier reports on
control orders, in particular in light of the recent House of
Lords judgments. In those earlier reports, we have consistently
maintained that a regime of less restrictive civil restriction
orders with proper due process guarantees would be capable, in
principle, of being compatible with both the right to liberty
and the right to due process. However, we have very serious reservations
about the renewal of the control order regime unless the Government
is prepared to render the regime so compatible, by making the
amendments we identify in this Report. Unless
those modifications of the control order regime are made, in our
view the use of control orders will continue to give rise to breaches
of individuals' rights both to liberty and due process.
Lord Carlile's Report
16. The annual report of the statutory reviewer of
the PTA 2005, Lord Carlile of Berriew QC, was published on Monday
18 February 2008, three days before the renewal order is due to
be debated in the House of Commons.[18]
We comment below on the limited opportunity this provides for
parliamentary scrutiny. Lord Carlile's principal conclusions are
identical to those in his Second Report on Control Orders last
year. He considers that control orders remain a necessity for
a small number of cases, in the absence of a viable alternative
for those few instances.[19]
Having seen the information, including the intelligence, on which
each control order is based, he would have reached the same decision
as the Home Secretary in each case in which a control order has
been made.[20] He remains
of the view that "as a last resort (only), the control order
system as operated currently in its non-derogating form is a justifiable
and proportional safety valve for the proper protection of civil
society."[21]
17. The Report was welcomed by the Home Secretary,
who cited the above conclusions and urged Parliament to renew
the legislation in light of them.[22]
18. In one significant respect, however, Lord Carlile's
report differs from his previous reports on control orders: he
has now reached the view that only in rare cases can control orders
be justified for more than two years, and he recommends that there
should be a presumption against extension of a control order beyond
two years, save in genuinely exceptional circumstances.[23]
This is significant because seven of the 15 individuals who are
currently the subject of control orders have been so for more
than two years, and of those seven, two have been on control orders
for three years and, presumably, before that were detained for
more than three years in Belmarsh under the Anti-Terrorism, Crime
and Security Act 2001. We comment on this in more detail in chapter
6 of this Report.
1 Under s. 13(2)(c) of the Prevention of Terrorism
Act 2005 which empowers the Secretary of State, by order made
by statutory instrument, to provide that sections 1 to 9 of that
Act are not to expire but are to continue in force for a period
up to a year. Back
2
EM para. 2.1. Back
3
EM para. 6.1. Back
4
The PTA 2005 received Royal Assent on 11 March 2005 and was renewed
for the period 11 March 2006 to 10 March 2007 by the Prevention
of Terrorism Act 2005 (Continuance in Force of sections 1 to 9)
Order 2006 (SI 2006 No. 512) and for the period 11 March 2007
to 10 March 2008 by the Prevention of Terrorism Act 2005 (Continuance
in Force of sections 1 to 9) Order 2007 (SI 2007 No. 706). Back
5
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 (hereafter "JCHR's First Report on Control Order Renewal");
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
(hereafter "JCHR's Second Report on Control Order Renewal"). Back
6
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
7
See chapter 3 below. Back
8
See Ninth Report of Session 2007-08, Counter-Terrorism Policy
and Human Rights (Eighth Report): Counter-Terrorism Bill,
HL Paper 50, HC 199 (hereafter "JCHR Report on Counter-Terrorism
Bill"), paras 41-73 and chapter 4 below. Back
9
See chapter 5 below. Back
10
Para. 58. Back
11
HC Bill 63. Back
12
Home Office press release, 18 February 2008, Lord Carlile Report:
Control Orders are "Justifiable and Proportional". Back
13
JCHR Report on Counter-Terrorism Bill, above, at para. 40. Back
14
JCHR's First Report on Control Order Renewal, paras 5-14; JCHR's
Second Report on Control Order Renewal, paras 12-17. Back
15
JCHR's First Report on Control Order Renewal, paras 36-42; JCHR's
Second Report on Control Order Renewal, paras 21-29. Back
16
JCHR's First Report on Control Order Renewal, paras 69-76; JCHR's
Second Report on Control Order Renewal, paras 30-38. Back
17
JCHR's Second Report on Control Order Renewal, paras 39-62. Back
18
Third Report of the Independent Reviewer pursuant to section
14(3) of the Prevention of Terrorism Act 2005 (18 February
2008) (hereafter "Lord Carlile's Third Report on Control
Orders"). Back
19
Ibid. at para. 27. Back
20
Ibid at para. 39. Back
21
Ibid. at para. 76. Back
22
Home Office press release, 18 February 2008 (above). Back
23
Lord Carlile's Third Report on Control Orders, above, at paras
50-51. Back
