UK Parliament votes to renew Control Order Regime
5 March 2007
The upper house of the British Parliament, the House of Lords, has voted in favour of renewing the Prevention of Terrorism Act 2005 [PTA 2005], and the Control Order regime which the Act establishes. The core provisions of the Act [sections 1-9] require yearly renewal, and would have lapsed on the stroke of midnight on the 10th of March without an affirmative vote in favour of renewal by each House of Parliament.
The Control Order regime was introduced as a response to the decision of the House of Lords in the the “Belmarsh case” [A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [ 2004] UKHL 56 ] where a declaration of incompatibility was made in relation to provisions in Part IV of the Anti-Terrorism Crimes and Security Act 2001 [ATCSA] which were introduced after 9/11 and permitted the detention without trial of foreign nationals who were suspected of being international terrorists. In contrast to the ATCSA, the Control Order regime which the PTA 2005 introduced does not give rise to "imprisonment" in the conventional sense. Rather it permits the making of orders by the Home Secretary which subject persons he reasonably suspects to be involved in terrorist-related-activity to a range of varied obligations including curfews, prohibition on arranged meetings with non-approved persons, prohibition on use of the internet/mobile phones, and a requirement to live at a specified address. Such orders as have been made thus far are of the variety which is made by the Home Secretary, and reviewed by the High Court. The Court's powers of supervision in relation to such orders are limited to applying the principles relevant on an application for judicial review.
Last month, Lord Carlile of Berriew, the statutory reviewer of Control Order system, concluded in his report that he would
"prefer it if no control order system was necessary. However, in [his] view it remains necessary given the nature of the risk of terrorist attacks and the difficulty of dealing with a small number of cases. Control orders provide a proportional means of dealing with those cases, if administered correctly."{1}
On the 22nd of February the House of Commons voted in favour of renewing the regime. However the debate in the House of Lords presented the prospect of being somewhat more problematic since the Lords are less easily whipped along party lines and number amongst their members a cadre of senior lawyers and human rights activists who have opposed these measures from the outset.
In a report published on the 4th of March 2007, the Parliament's Human Rights Committee presented a powerful critique of the Control Order regime, arguing that the Home Secretary was asking Parliament to renew a power which it said was being routinely exercised in breach of the right to liberty in Article 5 ECHR. The Committee argued that the renewal process therefore involved "Parliament being asked to be complicit in a de facto derogation from Article 5, without an opportunity to debate whether such a derogation is justified".
Last year, a similarly critical report of that Committee had drawn attention to a range of human rights concerns which the Committee claimed the Control Order regime raised. The Human Rights Committee's objections were not confined to concerns that the cumulative effect of the obligations set out in orders amounted to a deprivation of liberty contrary of Article 5. The Committee also argued it doubted whether the procedures for judicial supervision of control orders in the PTA 2005 secured the substantial measure of procedural justice that is claimed for them. Here the Committee is referring to the fact that the Court's role is confined to judicial review. The Committee is also concerned here that the process of reviewing the orders is arguably fundmantally deficient since controlees and their lawyers may be excluded from certain parts of the hearing, and denied access to or knowledge of the "evidence" upon which the Secretary of State's suspicion, and the Court's review is based. The Committee was skeptical about whether the appointment of a special advocate to protect the controlee's interests in such circumstances is always likely to be adequate for the purposes of Article 6 of the ECHR. Last year the Committee also contended that the effect of the orders had the potential to give rise to inhuman and degrading treatment contrary international law. Finally, we may note, that this year the Committee questioned the effectiveness of the Control Order regime as a mechanism for protecting the public, since three persons who were object of control orders abconded or otherwise evaded official action.
However despite the Committee's criticism of the Act, and notwithstanding the House of Lords recent tendency to differ from the House of Commons when important Civil Liberties are at stake, no negatory motion materialised. There was a lot of complaint, but insufficient political will or support to deprive the PTA 2005 of legal force, and leave the country at the mercy of individuals who the authorities say they believe are a serious risk to public safety. The renewal process involves the Government presenting Parliament with a stark all-or-nothing choice: vote to renew the legislation or let it lapse altogether. This proved to be an effective tactic on this occasion, as indeed it has done in the past with the old Prevention of Terrorism (Temporary Provisions) Acts the 1970s, 80s and 90s.
However, in contrast to those times, perhaps, it is at least partly the case that British judges today are more ready than in previous decades to intervene in sensitive Executive decision making of this sort. Of course their legal basis for doing so is considerably strengthened by the Human Rights Act 1998. So even though it seems that we will have to wait another 12 months or so before the political class get another chance to revisit these measures, debate about these measures will certainly continue in the Courts. See here for more.
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