1.  It appears that the Government has taken the view that no amendments to the control orders legislation are necessary following the judgments of the House of Lords. We disagree. (Paragraph 11)

2.  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. (Paragraph 13)

3.  Unless the modifications of the control order regime we recommended in our Report on the Counter-Terrorism Bill 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. (Paragraph 15)

4.  We would go further than the House of Lords Merits Committee and suggest that by failing to ensure that Lord Carlile's report is available to Parliament sufficiently in advance of the renewal debate to permit proper scrutiny by parliamentary committees, the Secretary of State is frustrating the purpose of the important provisions for parliamentary review of the control order powers in s. 14 PTA 2005. (Paragraph 24)

5.  In our view, this apparent delay in making the statutory reviewer's report available to Parliament last year was not only poor practice, it was incompatible with the statutory requirements in s. 14 PTA 2005. (Paragraph 25) The Home Secretary and the statutory reviewer should therefore ensure that the latter's report is available to Parliament in sufficient time to allow such scrutiny before the parliamentary debate on renewal. (Paragraph 27)

6.  We find the Government's failure to respond to our constructive proposals for improved parliamentary review extremely disappointing, especially in light of the renewed commitment of the Prime Minister to the importance of parliamentary oversight in relation to the unusual powers required to counter terrorism. (Paragraph 29)

7.  We recommend that parliamentary oversight of the highly unusual and intrusive powers contained in the control orders regime should be strengthened by:

i)  prescribing in more detail the information to be provided by the Secretary of State in her quarterly reports to Parliament about her exercise of the control orders power;

ii)  requiring the Home Secretary to provide to Parliament, at least a month before the annual renewal debate, an annual report on the exercise of the control order powers since the last renewal;

iii)  providing for the statutory reviewer of the operation of the Act to be appointed by Parliament not the Secretary of State, so that he or she is seen to be entirely independent of the Secretary of State and to emphasise that the reviewer's function is to inform Parliament and to facilitate informed parliamentary debate;

iv)  providing for the statutory reviewer to report directly to Parliament, not to the Secretary of State (as does, for example, the Parliamentary and Health Services Ombudsman)

v)  providing for the independent reviewer to report to Parliament on the operation in practice of the control orders regime and of the necessity for it, at least a month before the annual renewal debate. (Paragraph 33)

8.  We 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. (Paragraph 46)

9.  We 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. (Paragraph 47) 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. (Paragraph 48) 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. (Paragraph 49)

10.  We also note that Lord Carlile's Report suggests that the special advocate procedure is working well, and that the Rules of Court governing the conduct of control order proceedings also "continue to work reasonably well." 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, 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. (Paragraph 56)

11.  We share Lord Carlile's 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. (Paragraph 59)

12.  We continue to welcome the Government's professed policy of the priority of prosecution. We regard criminal prosecution, rather than indefinite resort to the parallel jurisdiction of control orders, as the way, compatible with human rights, to deal with these cases in the long run. (Paragraph 61)

13.  The fact that no individual who has been made the subject of a control order has subsequently been prosecuted for a terrorism offence, other than for breach of a control order, seems to us to be significant. We therefore continue to question the extent to which, in relation to certain individuals, priority is really given to criminal prosecution rather than the indefinite and extensive control which is currently available through the use of control orders. In our view, the Government's professed policy of preferring to prosecute as a first resort could be more effectively underpinned by a number of amendments to the control orders framework. (Paragraph 65)

14.  We recommend that the PTA 2005 should be amended to provide that, except in urgent cases, the Secretary of State may only make a control order where she is satisfied that there is no reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence. (Paragraph 67)

15.  We welcome the improvements to the Home Office's systems for keeping the prospects of prosecution under review. In our view, however, the policy of giving priority to prosecution would be better served by turning this from a matter of mere practice into one of express statutory obligation. We recommend that the PTA 2005 be amended to impose an express duty on the Secretary of State, throughout the period during which a control order has effect, to ensure that the question of whether there is a reasonable prospect of successfully prosecuting the subject of the order for a terrorism-related offence is kept under review at least every 3 months. (Paragraph 72)

16.  We therefore recommend that the Secretary of State should be placed under a duty to consult the police prior to her regular review of the prospects of prosecution and to share with the police such information (including intelligence information) as is available to her which is relevant to the prospects of a successful prosecution. (Paragraph 73)

17.  We recommend that the control orders legislation be amended to secure greater transparency of decisions that prosecution is not possible, first by imposing a duty on the chief officer of police to provide reasons when he advises the Secretary of State that there is no realistic prospect of prosecution and, second, by providing that those reasons shall be disclosed to the controlled person to the extent that such disclosure would not be contrary to the public interest. (Paragraph 76)

18.  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. (Paragraph 79)

19.  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. (Paragraph 84)

20.  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. (Paragraph 87)

21.  We express in this Report our major concerns about the adequacy of parliamentary scrutiny of the control order regime that was both promised by the Government at the outset and that is necessary. For the reasons we have explained in this and previous Reports, we continue to have very serious concerns about the human rights compatibility of both the control orders regime itself and its operation in practice. In particular we remain concerned that the regime as it currently stands and as it is currently operated is very likely to result in breaches of both the right to liberty and the right to a fair hearing. (Paragraph 88) We therefore have very serious reservations about the renewal of the control order regime unless the Government is prepared to make the amendments we identify in this Report which are intended to render it human rights compatible. Unless those modifications of the control order regime are made, in our view it is inevitable that the use of control orders will continue to give rise to breaches of individuals' rights both to liberty and due process. (Paragraph 89)