Updated | The government is soon to reveal the future of control orders, controversial anti-terrorism measure which have been repeatedly found by the courts to infringe human rights. But what are they? And why have they caused such trouble since they were introduced?
What are control orders?
Control orders are an anti-terrorism power which allows the secretary of state to impose strict conditions on a terrorist suspect (the ‘controlee’).
The conditions can include a curfew of up to 16 hours per day, electronic tagging, travel restrictions of a few miles in non-curfew hours, regular reporting to a monitoring company, regular home searches, and strict limits on interpersonal communication. There are sometimes other consequences of the order, such as friends being unwilling to visit them.
So, control orders effectively amount to house arrest. As the name suggests, they allow the government to “control” the lives of a suspect.
By what power?
Control orders are an invention of the Prevention of Terrorism Act 2005 (‘PTA’) which came into force in March 2005.
They were introduced after the House of Lords (now the Supreme Court) ruled in the now famous Belmarsh case, that a regime introduced after the September 11 2001 attacks, which allowed the secretary of state to detain a suspected international terrorist with a view to his intended deportation, was incompatible with the right to liberty under the European Convention.
Two conditions must be satisfied for a control order to be granted. By section 2 of PTA, the secretary of state must have “ reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity” and show that “it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual“.
The conditions which are available under control orders are listed in PTA section 1(4).
So what’s the problem?
As Mr Justice Silber put it in a recent speech on the topic, control orders “seek to resolve conflicts of interest of great importance in constitutional and personal liberty terms“.
The main problem is that the orders are imposed in the early stages of an investigation, and the secretary state need only show “reasonable grounds” of suspicion to impose one. In an ordinary criminal case, at least a charge would be required to impose such strict conditions, so the orders go far beyond the ordinary powers of the police.
This raises a number of difficult issues. First, the basic conflict between the rights of an individual to freedom against the rights of the state to protect its citizens from terrorism. The security services have long argued that the orders are an important practical means of fighting terrorism, and that due to the extreme effects of a successful terrorist attack, the restrictions on liberty are justified.
However, the counter-argument is that the orders represent a breach of human rights as well as basic principles of common law due process. Put simply, the state must prove its case before a person can have his (all ‘controlees’ thus far have been male) liberty so severely circumscribed.
A second issue which has attracted the attention of the courts is to what extent controlees should know the case against them. On the one hand, knowing the case against you is a basic requirement of a fair trial under article 6 of the European Convention. On the other, the security services have often argued that disclosing sensitive secret evidence in court could itself put lives at risk.
The evidence also often comes from other states’ intelligence services, and, as the head of MI6 put it in a recent speech, intelligence services operate according (somewhat ironically) to the “control principle”, whereby “the service who first obtains the intelligence has the right to control how it is used”. So it is possible that by forcing evidence to be disclosed, the intelligence services are jeopardising relationships with partners.
Sir Malcolm Rifkind is currently looking at the issue of how secret evidence is used in judicial proceedings. This will certainly be an important background element to any reform of the control order scheme.
How is secret evidence dealt with?
Another controversial side-effect of the control order scheme has been the introduction into courts of the “special advocate“.
It is a prerequisite for a control order that prosecution of the subject should not be possible. In all control order cases, the Government seeks to withhold relevant evidence and/or allegations on the basis that disclosure would be harmful to the public interest. The control order regime provides a mechanism that purports to allow for this, whereby the secretary of state can disclose the case to a special advocate, a barrister who has security clearance and is acting on behalf of the suspect. The advocate and the judge will see the secret evidence, but not the suspect.
The highly unusual aspect of the special advocate system was (and to an extent, still is) that counsel is unable to take instructions from his or her client, as they will not have seen the secret evidence.
This issue was dealt with in the AF case, in which the House of Lords ruled that in order to guarantee a fair hearing under article 6 of the European Convention the judge must insist in every case that the controlled person is given sufficient information to enable his special advocate effectively to challenge the case that is brought against him.
This may result in the security services having to provide secret or sensitive information to him, or abandon reliance upon that material – which may necessitate dropping the case against him altogether. This happened following the AF case, and the Court of Appeal recently quashed three control orders altogether, leaving the door open for the former-controlees to claim compensation.
Whatever happens to the control order scheme, the courts’ numerous statements on secret evidence have reaffirmed the principle of open justice, and have already been applied in cases involving forced marriages and child protection.
What about the human rights act?
Despite only being imposed on around 50 people since their introduction in 2005, control orders have been regularly reviewed by the courts. The regime has, generally speaking, been found to be human rights compliant, but with a number of significant provisos so as to achieve ECHR compliance (in particular with Article 6 – as explained above, by reference to the AF (No.3) case - Article 5, and Article 8
The specific conditions of the orders are regularly found by the courts to breach controlees’ human rights, and in particular the right to liberty and/or right to respect for private and family life.
For example, in September 2010 the High Court ruled that a control order which required the “controlee” to relocate and live at an address in Ipswich, away from his family in Crawley, was unlawful.
The Supreme Court made a similar point in June, when it ruled that a control order which placed a man 150 miles away from his family breached his human rights to family life and liberty. The family life aspect tipped the balance for the court.
The control order scheme is being urgently discussed at the moment as part of a wider anti-terrorism review. It has been regularly reported that the coalition is split along party lines on the issue, with the Liberal Democrats in general and Nick Clegg in particular arguing that the system should be scrapped entirely, and the Conservatives saying it should be retained but modified. In reality, the position may not be as clear as that. The Prime Minister said yesterday that control orders “haven’t been a success” and need a “proper replacement”.
Meanwhile, although deputy prime minister Nick Clegg was supposed to make an announcement on control orders today, this has apparently been put off for at least a week and the annoucement is instead to be made by the home secretary Teresa May. This may reflect more behind the scenes wrangling.
Whatever replaces control orders is unlikely to insulate them from court scrutiny. It seems that the government is resigned to striking an uneasy balance between liberty and security in anti-terrorism policy, and this is perhaps inevitable given the nature of the threat. As Lord Phillips put it in the AF case:
The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted.
Many argue that the last government was responsible for this “slow creep of complacency” on anti-terrorism issues. But despite its early pledge to “reverse the substantial erosion of civil liberties under the Labour Government“, the control order issue shows that the new government is finding it more difficult in practice to balance security with liberty.
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