Background

77. In our report on last year's annual renewal, we agreed with Lord Carlile's important warning, in his Second Report on Control Orders, that there is an urgent need for an exit strategy, that is, a strategy for ending the control orders in relation to each controlled person, because control orders cannot be continued indefinitely.[82] In his Third Report, Lord Carlile remains concerned about the need for an exit strategy in relation to each control order, but it is now his view that "it is only in rare cases that control orders can be justified for more than two years."[83] He therefore recommends that there should be a recognised and possibly a statutory presumption against a control order being extended beyond two years except in genuinely exceptional circumstances.[84]

78. In its response to Lord Carlile's Second Report, the Government said that it had now placed on a more formal basis its consideration of exit strategies for individuals subject to control orders. Any possible exit strategy for an individual is formally considered at the quarterly review group meeting, with a view to deciding whether a control order remains necessary, whether there are other options to address the risks, and whether the control order obligations remain necessary and proportionate. The main potential exit strategies for individuals are:

• Prosecution
• Deportation (in the case of foreign nationals)
• Modification of the obligations in the control order
• Non-renewal or revocation of the control order
• De-radicalisation and rehabilitation programmes (though the identification and evaluation of such programmes is said to be at an early stage).

79. Recruitment as an informer by the Security Service would not in our view be a legitimate exit strategy as this would introduce an illegitimate purpose into the maintenance of the control order. We look forward to receiving the Home Secretary's confirmation that individuals who are the subject of control orders have not and will not be approached by the Security Service for this purpose.

80. We welcome the Government's formalisation of its review of possible exit strategies for individuals subject to control orders. However, we note that while the Government, in its response to Lord Carlile's Second Report, accepted that control orders should not continue indefinitely "if at all possible", it "does not accept that a control order should be revoked according to an arbitrary timetable." In the Government's view, if an individual on a control order who poses a risk of terrorism to the public still cannot be prosecuted or deported, it is the Government's responsibility to renew that control order.

81. In our view two amendments to the control orders legislation are necessary to give full effect to Lord Carlile's recommendation that control orders cannot be continued indefinitely and that there must be a strategy for ending the control order in relation to each controlled person.

Amendments to the control orders framework

(1) DUTY TO KEEP NEED FOR CONTROL ORDER UNDER REVIEW

82. The PTA 2005 does not impose any duty on the Secretary of State to keep the decision to impose a control order under review. The Court of Appeal in MB, however, held this to be implicit in the Act,[85] and this was upheld in the House of Lords.

83. The Secretary of State accepts that she is under a duty to keep the decision to impose a control order under review. The mechanism for ensuring compliance with this duty is the Control Order Review Group which meets every quarter, with representation from law enforcement and intelligence agencies. In her most recent quarterly report on control orders the Home Secretary states that such review groups keep the obligations in the order under review and facilitate a review of appropriate exit strategies.[86] It is not clear from this whether the regular review considers the continued necessity for the order.

84. We recommend that the control order legislation be amended to impose an express duty on the Secretary of State to keep the decision to impose a control order under review, including by considering whether there continue to be reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity and whether a control order continues to be necessary at all.

(2) LIMIT ON MAXIMUM DURATION OF A CONTROL ORDER

85. We accept that the question of whether there should be a maximum limit on the duration of a control order is a difficult one. We can see the force in the Government's argument that it is under a duty to take some positive steps to protect the public if it has reason to suspect that a person poses a risk to the public from terrorism. On the other hand, severe restrictions on liberty of indefinite duration are extremely problematic in human rights terms, and involve an ever-growing risk of subjecting those who are under such controls to inhuman or degrading treatment contrary to Article 3 ECHR, or to the interferences with their Convention rights to privacy and respect for private life becoming disproportionate. Although the Home Secretary denies that individuals are indefinitely subject to control orders, the fact is that several of the controlees have already been the subject of their orders for a considerable time. According to the Home Secretary's own information, two individuals have been on control orders since they were introduced almost three years ago, and a total of seven of the current 15 on control orders have been on control orders for more than two years.[87] It is likely that two (we do not know precisely how many) were also detained in Belmarsh under the Anti Terrorism Crime and Security Act 2001 before that.

86. The availability of a control order for a finite period might also serve to focus the efforts of investigators to come up with material which can be used as evidence in a criminal prosecution rather than rely on the indefinite availability of a control order.

87. We do not believe it is sufficient to rely solely on the courts to ensure that the operation of an individual control order is not indefinite or so prolonged that it breaches human rights obligations. We see the force of Lord Carlile's suggestion that there could be a statutory presumption against control orders being extended beyond a maximum duration of two years other than in genuinely exceptional circumstances. On balance, 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. Beyond prohibiting severe controls of indefinite duration, however, human rights law does not provide any clear answer as to what that limit should be. We recommend that Parliament should debate the principle of whether there should be a maximum limit on the duration of a control order, and if so what that limit should be. We will propose an amendment to the Counter-Terrorism Bill to enable such a debate to take place.

83   Lord Carlile's Third Report on Control Orders, above n. 18, at para. 50. Back

84   Ibid. at para. 51. Back

85   Secretary of State for the Home Department v MB [2006] EWCA Civ 1140 at para. 44. Back

86   HC Deb 12 December 2007 col 38WS. Back

87   Letter of 18 February 2008 (Appendix 2). Back