Will control orders survive the anti-terrorism review?

9 November 2010 by Adam Wagner

The debate over whether control orders will survive the anti-terrorism review has been rumbling on for the past weeks, with a surprising amount of internal discussions being aired in public.

The human rights organisation Liberty, which opposes the orders, has posted a useful summary of the recent back and forth, which it calls (allegedly quoting the Prime Minister) a “car crash”. Reading the summary, it seems clear that there are a number of strongly held but opposing views within the coalition, apparently split down party lines. There also appears to be no clear picture from within the security services either.

Although control orders have only affected around 50 people in total since their introduction in 2005, and just 9 at present, the outcome of the review is important as it goes to the heart of the liberty versus security debate. The extreme effect of the orders – which can amount to effective house arrest without trial – represents a significant departure from the basic procedural protections enshrined both in the English common law as well as the Human Rights Act, as the courts have repeatedly held.

For an excellent summary of the debate surrounding the orders, look no further than Mr Justice Silber’s recent speech on the issue to the Bar Council Conference. The High Court judge, who has plenty of experience in dealing with issues surrounding terrorism, for example the Al Rawi litigation, was rightly cautious not to provide any “views on whether control orders should continue“, adding that this should especially be the case as he had “no knowledge of the risks of terrorism and I am not a politician“.

However, he did provide a useful and succinct overview of the issues surrounding the controversial anti-terrorist instrument. He summarised the effect of the orders “in their most stringent terms“:

They impose curfews of sometimes up to 16 hours a day during which the controlled person cannot leave his or her home. He or she is required to wear an electronic tag at all times. During non-curfew hours, they are limited to areas often of about 9 square miles bound by a number of identified main routes. They have to report to a monitoring company on first leaving their home after a curfew period has ended and on their last return before the next curfew period begins.

The homes of those subject to control orders are liable to be searched by the police at any time and during curfew hours they are not allowed to let any person enter their homes except certain specified people, children under the age of ten or people agreed to by the Home Office in advance but such potential visors are required to supply to the Home Office the names, addresses, dates of birth and photographic identification.

There are also limits on who the person subject to a control order can communicate with at any time and often they are only permitted to attend one place of worship, they cannot have any communication equipment of any kind and they have to surrender their passport. They are prohibited from visiting airports, sea ports or certain railway stations and they are subject to additional obligations pertaining to their financial arrangements.

The practical consequences of these orders are very substantial because friends are unwilling to visit those subject to a control order. Those subject to control orders are often refused permission to visit other people or to allow them to come and visit them. In many ways they are cut off from the outside world although the Secretary of State has the heavy task of showing in respect of each and every obligation in the control order that it was necessary for purposes connected with protecting members of the public from a risk of terrorism to make a control order imposing other obligations.

A heavy burden indeed, and one which the highest courts have, on the whole, been wary to enforce. Ultimately, the question for the review will be whether the security services feel they cannot protect the public without use of the orders.

It is also interesting that the orders have been defended on the basis that the alternative, 24 hour surveillance, would be too expensive. It would be useful to know how much time and money has been spent defending the orders and how this compares to the likely costs of surveillance.  The Human Rights Select Committee asked exactly this question in its recent report on the issue which concluded that the scheme was no longer justifiable or sustainable.

Mr Justice Silber also made a connection to the recent speech of Sir John Sawers, the Chief of the Secret Intelligence Service, who said that “Foreign partners need to have certainty that what they tell us will remain secret – not just most of the time, but always.” One of the problems with control orders is that the courts have been increasingly unwilling to allow them to stand unless the suspects are given a gist of the case against them. Although just a ‘gist’, this can still compromise intelligence efforts by potentially providing secret information to the very person who could exploit it. So control orders have caused unintended problems for the intelligence services, as well as a headache for government lawyers.

We should know the answer to all of these questions next month when the findings of the anti-terrror review are published.

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