Background

50. In our reports on the two previous control orders renewal Orders, we expressed a number of due process concerns about the control orders regime which led us to doubt whether the regime as a whole was compatible with the right to a fair hearing in Article 6(1) ECHR and the equivalent common law rights.

51. Although at the time of last year's renewal the Court of Appeal had ruled that the control order regime was compatible with the right to a fair hearing,[53] we maintained our earlier view, doubting whether the procedures for the judicial supervision of control orders in PTA 2005 in fact secure the substantial measure of procedural justice claimed for them.[54]

52. The Government in its Response to our report on last year's renewal Order said it "does not accept the view that the control order regime violates controlled individuals' right to a fair trial."[55]

The House of Lords judgment in MB

53. The House of Lords in MB, however, recently held, by a majority of four to one, that the procedures contained in the PTA 2005 and the Rules of Court made under it would not be compatible with the right to a fair hearing to the extent that they could lead to the upholding of a control order where the essence of the case against the controlled person remained entirely undisclosed to him or her.[56] In their opinion, the statutory regime could only be made compatible with the right to a fair hearing by using s. 3 of the Human Rights Act to read into the legislation additional words guaranteeing the right of the controlled person to a fair hearing.

54. We welcome the House of Lords' rejection of the Government's argument that the statutory regime for control orders will always provide the individuals concerned with a substantial measure of procedural justice. The House of Lords judgment accords with many of the concerns we have repeatedly expressed about the fairness of control order proceedings. We note that Lord Carlile in his Third Report on Control Orders describes the challenge to the compatibility of the control orders legislation with Article 6 ECHR in MB as having been "unsuccessful".[57] Although it is correct that the House of Lords decided not to give the declaration of incompatibility sought by the appellants, their due process argument succeeded to the extent that the House of Lords accepted that the legislation required additional words to be read in to ensure that the right to a fair hearing is not infringed. Lord Carlile acknowledges that there is a lack of certainty following the House of Lords judgment, but concludes that this "will ensure the most careful consideration of each case by the Home Secretary."[58]

55. We are not prepared to be so sanguine and prefer to see the statutory framework clarified by Parliament in light of the House of Lords judgment in MB.

56. We also note that Lord Carlile's Report suggests that the special advocate procedure is working well,[59] and that the Rules of Court governing the conduct of control order proceedings also "continue to work reasonably well."[60] We are surprised by this conclusion, given the serious concerns about the fairness of the special advocate procedure expressed in evidence to us by a number of special advocates,[61] and the concerns of the majority of the House of Lords in MB about the dangers of controlees being denied the essence of a fair hearing. We are also disappointed that the statutory reviewer of the operation in practice of control orders does not appear to have taken into account our own detailed recommendations about how to improve the fairness of the special advocate regime.[62]

Amendments to the control orders framework

57. In our recent report on the Counter-Terrorism Bill we explained why, in our view, the opportunity should be taken in that 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.[63] 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.

58. For ease of reference we set out in an Annex the detailed explanations of those amendments taken from our recent Report on the Counter-Terrorism Bill.

59. In addition to these due process concerns, Lord Carlile has also expressed concern about the part of the statutory framework concerning appeals against control orders, which provides that the principles applicable on such appeals are those applicable on an application for judicial review. [64] We share his concern about whether the legislation is sufficiently clear to ensure that the High Court can set aside a control order if it is based on a serious factual error or that there is new evidence to show that there has been a substantial change in the situation since the making of the order. We intend to suggest an amendment to ensure that the issue is considered by Parliament during the passage of the Counter-Terrorism Bill.

54   JCHR's Second Report on Control Orders Renewal, above n. 5, at para. 37. Back

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

56   Secretary of State for the Home Department v MB [2007] UKHL 46. Back

57   Lord Carlile's Third Report on Control Orders, at para. 18. Back

58   Ibid. at para. 61. Back

59   Ibid., at para. 56. Back

60   Ibid., at para. 90. Back

61   See JCHR Report on 28 days, intercept and post-charge questioning, above n. 33, paras 192-209 for a summary of the special advocates' concerns, and Ev10-21 for the oral evidence of the special advocates. Back

62   JCHR Report on Counter-Terrorism Bill, above n. 9, at paras 55-73. Back

63   Ibid. Back

64   Lord Carlile's Third Report on Control Orders, paras 82-83. Back