Background

35. In our previous two Reports on the annual renewal of the control orders legislation, we expressed our concern that the control orders regime was being operated in practice in breach of the right to liberty in Article 5 ECHR, because it was being used to impose control orders so restrictive of liberty as to amount to deprivations of liberty. We were therefore concerned that many of the control orders which had so far been imposed, which included 18 hour curfews amongst a variety of other serious restrictions on the individuals' private and family life, freedom of movement and freedom of association, were in fact derogations from Article 5.[43] We reported our concern that in being asked to renew a power which was being exercised in this way, Parliament was being asked to authorise what are effectively derogating measures without having the opportunity to debate whether the strict pre-conditions for a derogation from the right to liberty were made out.

36. The Government, in its response to our Report on last year's renewal of the control order regime, stated that it "does not accept that any of the control orders made thus far … deprive any individual of their liberty."[44]

The House of Lords judgment in JJ

37. The House of Lords has now ruled on this question in the case of JJ and others, which concerned six controls orders.[45] By a majority of three to two, the House of Lords rejected the Secretary of State's argument that the six control orders made in those cases did not deprive the individuals of their liberty.[46] They upheld the decisions of the High Court and the Court of Appeal that the effect of the restrictions, considered cumulatively, was so restrictive of the individuals' liberty as to amount to a deprivation of liberty. The control orders therefore breached Article 5 and for that reason had to be quashed.[47]

38. However, one member of the majority, Lord Brown, although holding that the control orders in question (which had 18 hour curfews) amounted to deprivations of liberty, indicated that in his view curfews up to 16 hours a day would not amount to a deprivation of liberty.[48]

39. On the basis of Lord Brown's indication, the Home Secretary has subsequently argued that there is a majority in the House of Lords judgment in JJ (taking account of the views of the two dissenting judges that control orders containing curfews of 18 hours did not amount to a deprivation of liberty) that control orders imposing curfews up to 16 hours a day, where it is necessary and proportionate to do so, are not in breach of Article 5 because they do not amount to deprivations of liberty. The Home Secretary has therefore increased the curfews in four cases from 12 to 16 hours (having previously reduced them from 18 to 14 and then to 12 hours in light of the earlier judgments of the lower courts).[49]

40. The net effect of the lengthy litigation about the compatibility of control orders with the right to liberty in Article 5 ECHR has therefore been to reduce the curfew period in the most onerous control orders from 18 to 16 hours.

Amendments to the control orders framework

41. We find Lord Brown's indication in his judgment in JJ to be a very slender legal basis on which to increase the curfew periods in existing control orders from 12 to 16 hours. Taken together with the other restrictions, that extension is a significant increase in the restriction on liberty. Lord Brown himself was somewhat tentative about his interpretation of Article 5 ECHR:

"I think that nowadays a longer curfew regime than 16 hours a day (with the additional restraints imposed in these cases) would surely be classified in Strasbourg as a deprivation of liberty. It may be, indeed, that 16 hours is too long. I would, however, leave it to the Strasbourg Court to decide upon that, were any such argument to be addressed to it."[50]

42. The issue will certainly find its way to the Strasbourg Court in due course, although it may take several years to do so. In the meantime, however, in our view, 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 to spell it out more clearly in the statutory framework governing control orders. We think there is scope to provide clearer guidance to courts about what Parliament would consider to amount to a deprivation of liberty and therefore not within the scope of the power to make a non-derogating control order.

43. We therefore recommend that the PTA 2005 be amended in the following respects, drawing on some of the clarifications provided by the courts, in order to reduce the risk of incompatibility with the right to liberty in Article 5 ECHR.

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

44. To focus on the length of the curfew as the main determinant of whether a control order amounts to a deprivation of liberty, as Lord Brown did in his judgment, is in our view to misinterpret the 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.

45. In Guzzardi v Italy, for example, the curfew was only for nine hours, but the combined effect of the other restrictions imposed on the individual led the Court of Human Rights to conclude that there had been a deprivation of liberty.[51] As Lord Bingham said in JJ, because account must be taken of an individual's whole situation, it is "inappropriate to draw a sharp distinction between a period of confinement which will, and one which will not, amount to a deprivation of liberty, important though the period of daily confinement will be in any overall assessment."[52]

46. We therefore recommend 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. This could simply take the form, for example, of spelling out expressly in the statute that the courts must have regard to factors such as the nature, duration, effects and manner of implementation of the restrictions, and that the combination of obligations may amount to a deprivation of liberty even if no individual obligation amounts to such a deprivation. We will suggest amendments to give effect to this recommendation in our report on the Counter-Terrorism Bill.

(2) IMPOSE MAXIMUM LIMIT ON DAILY LENGTH OF CURFEWS

47. We also recommend that Parliament should amend the PTA to impose a maximum daily limit on the curfew which can be imposed in a control order in order to make it less likely that control orders will be found to be in breach of Article 5.

48. There is clearly scope for argument and disagreement about what that limit should be, but in our view, given the seriousness of the other restrictions imposed on individuals in the most onerous control orders, and their open-ended nature, it should be 12 hours, not 16 hours as the Government currently interprets its obligations under Article 5 ECHR.

49. We hasten to point out that this would be a maximum limit, not a line below which curfews do not amount to a deprivation of liberty. In our view, as we have explained above and as the case of Guzzardi makes clear, control orders which contain curfews of less than 12 hours are still capable of amounting to a deprivation liberty if the other restrictions imposed on the individual are sufficiently severe.

44   Government Response to JCHR's Second Report on Control Order Renewal, above n. 30, at p. 5. Back

45   Secretary of State for the Home Department v JJ and others [2007] UKHL 45 (31 October 2007). Back

46   Lord Bingham, Baroness Hale and Lord Brown in the majority, Lords Hoffmann and Carswell dissenting. Back

47   JJ [2007] UKHL 45 at paras 24 (Lord Bingham), 63 (Baroness Hale) and 105 (Lord Brown). Back

48   Ibid at paras 105 and 108. Back

49   Letter from Home Secretary dated 18 Feb 2008 (Appendix 2). A new control order containing a 16 hour curfew has also been imposed since the House of Lords judgment, bringing to 5 the total number of control orders imposing a 16 hour curfew. Back

50   [2007] UKHL 45 at para. 106. Back

51   (1980) 3 EHRR 333 at para. 95. The case concerned a "compulsory residence order" against a suspected Mafioso, under which he was required to live on a small island. Although he was only subjected to a 9 hour curfew, the combined effect of the other conditions left him socially isolated and led the Court to conclude, on balance, that he had been deprived of his liberty. Back

52   JJ [2007] UKHL 45 at para. 16 (Lord Bingham). Back