a potted history of Control Orders
In a previous article I wrote,
In my opinion it doesn’t help when people such as the Prime Minister make comments such as these:
Control orders were never going to be as effective as detention, but of course we have got to make sure that if someone breaches their control order then they are properly sought after, and we will do that, and that is a job for the police. But the reason why it is difficult is that the legislation that we had in place, that we wanted to maintain, was then overturned. And some of the self-same people who are criticising us on control orders today were leading the charge against the legislation that would have allowed us to detain these people.
Quite different from what really happened.
I think I should backup that claim, so here is a potted history of Control Orders.
I don’t believe I need to go into what happened in the USA on 11 September 2001. The Government reacted by calling for new laws “necessary to counter the threat from international terrorism”. The Home Secretary at the time, David Blunkett, said,
I think that we all accept that there is a compelling need for more effective powers to exclude and remove suspected terrorists from our country. We rightly pride ourselves on the safe haven that we offer to those genuinely fleeing terror. But our moral obligation and love of freedom does not extend to offering hospitality to terrorists. That is why, both in the emergency terrorism Bill and in a separate extradition measure, I will ensure that we have robust and streamlined procedures.
I believe that it will be possible to achieve these changes without substantial alteration to the Human Rights Act 1998. Nevertheless, it may well be necessary, using article 15, to derogate from article 5 of the European convention. That would allow the detention of foreign nationals whom we intend to remove from the country, and who are considered a threat to national security. This would occur in circumstances falling outside those permitted by article 5 of the European convention on human rights, but within the scope of article 1f of the 1951 refugee convention.
Even at this early stage, the Government was warned against the inoperability in practice of hasty legislation, and the Joint Committee on Human Rights (JCHR) remarked,
it is precisely in such circumstances as the aftermath of the attacks of 11 September that the protection of human rights will come under the greatest pressure from the demands of the state (and of public opinion) for greater security, and the demands placed upon Government and its agencies to be seen to be ‘doing something’.
But, despite such concerns, the Government introduced in November 2001 (and Parliament later passed, with amendments) what was to become Part 4 of the Anti-terrorism, Crime and Security Act 2001 (ATCSA).
Mr Blunkett set out a stark choice in face of criticism from libertarian groups. Speaking on LWT’s Dimbleby programme yesterday, he said: “We could live in a world which is airy fairy, libertarian, where everybody does precisely what they like and we believe the best of everybody and then they destroy us”. (The Guardian)
The UK was not entitled to detain for the long-term or indefinitely those foreign nationals whom the Home Secretary wished to deport. Such a person could only be detained pending deportation, otherwise the European Convention on Human Rights (ECHR or ‘the Convention’) would be breached and his Convention rights would be violated.
Furthermore the UK was absolutely prohibited, by Article 3 of the ECHR, from deporting foreign nationals to countries where they faced torture or inhuman treatment.
The Government claimed that “a public emergency, within the meaning of Article 15(1) of the Convention” existed in the United Kingdom. Now, Article 15(1) reads,
- In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
- Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
According to the JCHR, the UK is the only country out of 45 in the Council of Europe to have derogated from Article 5; the only country in the world to have derogated from Article 9 of the International Covenant on Civil and Political Rights; and, except for the USA, the only country to have resorted to the indefinite detention of suspected terrorists.
The JCHR had said of the draft Bill,
But even if it is accepted that there is such an emergency, the lack of safeguards built into the Bill, particularly in relation to detention powers, causes us to doubt whether the measures in the Bill can be said to be strictly required by the exigencies of the situation.
we are not persuaded that the risk of discrimination on the ground of nationality in the provisions of Part 4 of the Bill has been sufficiently taken on board.
But now it seemed that the Government could indefinitely detain foreign nationals, pending their removal from the UK.
21 Suspected international terrorist: certification
(1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably-
(a) believes that the person’s presence in the United Kingdom is a risk to national security, and
(b) suspects that the person is a terrorist.
None was the subject of any criminal charge, and there was no prospect of any trials.
Two exercised their right to leave the UK: one departing to Morocco three days later; the other to France in March 2002. Another was transferred to Broadmoor Hospital on the grounds of mental illness in July 2002. Another was released on bail, under strict conditions (similar to the control orders of the future), in April 2004. The Home Secretary revoked the certification of another in September 2004, and he was unconditionally released.
Another detainee was held for 15 months before the Special Immigration Appeals Commission quashed his certificate on the grounds that
the assessments placed before us and the respondent are not reliable and that reasonable suspicion is not established.
All eight of the original detainees, and another – who was detained and certified in early February 2002 – were to challenge the lawfulness of their detention, and the case eventually reached the Law Lords:
The nine appellants before the House challenge a decision of the Court of Appeal (Lord Woolf CJ, Brooke and Chadwick LJJ) made on 25 October 2002 ( EWCA Civ 1502,  QB 335). The Court of Appeal allowed the Home Secretary’s appeal against the decision of the Special Immigration Appeals Commission (Collins J, Kennedy LJ and Mr Ockelton) dated 30 July 2002 and dismissed the appellants’ cross-appeals against that decision:  HRLR 1274.
they all contend that such detention was inconsistent with obligations binding on the United Kingdom under the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998; that the United Kingdom was not legally entitled to derogate from those obligations; that, if it was, its derogation was nonetheless inconsistent with the European Convention and so ineffectual to justify the detention; and that the statutory provisions under which they have been detained are incompatible with the Convention. The duty of the House, and the only duty of the House in its judicial capacity, is to decide whether the appellants’ legal challenge is soundly based.
The Lords ruled in an eight to one majority that,
There will be a quashing order in respect of the Human Rights Act 1998 (Designated Derogation) Order 2001. There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status. The Secretary of State must pay the appellants’ costs in the House and below.
Lord Hoffmann emphasised that,
I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.
In an interview during a Radio4 Today programme, the Prime Minister Tony Blair responded to Hoffmann’s comment:
When a law lord uses language that strong you’ve got to reflect very carefully on what you’ve done. Let me try and explain it to you from the point of view of the law maker…and just remember incidentally it’s only because we have introduced basic human rights law into this country that such a case could be brought.
I understand entirely the civil liberties considerations and I am not dismissive of them or disrespectful of them in any way at all, but I just…the fear I have as you will imagine is what happens if the security services are telling us these people are a threat, we allow them to walk the street, and then they end up killing large numbers of innocent people. Now I’m not saying these…this is going to happen, I’m simply saying that that’s the dilemma we face.
The BBC reported,
Home Secretary Charles Clarke [David Blunkett had by this time resigned] said the men would remain in prison. He said the measures would “remain in force” until the law was reviewed.
In a statement to MPs, Mr Clarke said: “I will be asking Parliament to renew this legislation in the New Year. In the meantime, we will be studying the judgment carefully to see whether it is possible to modify our legislation to address the concerns raised by the House of Lords.”
And the suspects remained detained until after the Prevention of Terrorism Act 2005 was given Royal Assent…
In January 2005 the newspapers reported that,
Terror suspects in Britain will in future be put under house arrest under a system of “control orders” instead of being held in prison without trial, Charles Clarke, the Home Secretary, said today.
But the 12 foreign terror suspects being held in Belmarsh and Woodhill high security prisons will not yet be released – despite a House of Lords ruling last month that continuing to hold them without trial is illegal under human rights law.
Mr Clarke said that the switch to the use of “control orders” meant that the Government had accepted the law lords’ ruling that the anti-terror laws breached human rights conventions. The judges were unhappy that the laws applied only to foreign nationals, and the new powers will also apply to British citizens.
Precisely the outcome that Lord Hoffman wanted to avoid.
The Home Secretary Charles Clarke introduced the Prevention of Terrorism Bill to the Commons in late February 2005. Among the proposals was the power for the Home Secretary to issue ‘control orders‘. They were compared to ‘football banning orders’ and ‘anti-social behaviour orders’.
Once again, the Government was warned against the attempt to rush the bill through Parliament, and that the obligations a Home Secretary could impose might violate the suspect’s Convention rights. The draft Bill also allowed the Home Secretary to issue control orders without any judicial involvement.
The draft Bill was amended to include judicial involvement, but was still viewed as unsatisfactory if a control order’s obligations amounted to a deprivation of liberty. Prior to being granted Royal Assent, 18 days after being introduced, it suffered “Parliamentary ping-pong” and a Labour rebellion.
The detainees were freed and issued with control orders.
Something that struck me about the debates was Charles Clarke’s comment that,
I want to start from the reality of what control orders are. They are preventive orders, not punishments. They are designed to prevent future atrocities from being committed, not to punish for what has been done in the past.
It seems to me as if people are in fact being punished, and being punished for something that they might do, not what they have done.
I now fast forward to the challenge made by six people (JJ, KK, GG, HH, NN, and LL) to their control orders.
Their orders were quashed on 28 June 2006, pending an appeal made by the Government within seven days of the decision. The Government appealed in July, but lost (decided on 1 August 2006), and the order’s were finally quashed. Before a new order could be served on LL, he disappeared.
I recommend reading the judgements for the detail, particularly the obligations of the control orders listed in Annex 1 of Mr Justice Sullivan’s High Court decision. Furthermore there is some comment on assurances made to such organisations as the Committee of Ministers of the Council of Europe, particularly:
The United Kingdom government’s comments in 2005 would have left the Committee of Ministers of the Council of Europe with the reassuring impression that if a control order made by the Secretary of State did constitute a deprivation of liberty, then the court could be expected to use its powers to quash that order, but now that the crunch has come in 2006, the Secretary of State is strenuously seeking to persuade the court that it would not be appropriate to exercise that power.
One would have thought that public assurances given by the UK government in response to concerns expressed in an official report could be relied upon, particularly where a Convention right of “fundamental importance” was in issue.
Lord Carlile, the independent reviewer of the legislation, is quoted as saying:
The obligations include an eighteen hour curfew, limitation of visitors and meetings to those persons approved by the Home Office, submission to searches, no cellular communications or internet. And a geographical restriction on travel. They fall not very far short of house arrest, and certainly inhibit normal life considerably.
In summary, the courts decided that these obligations amounted to a ‘deprivation of liberty’ contrary to Article 5 of the European Convention of Human Rights. In addition, “LL faced criminal charges for alleged breaches of his order. If the order was quashed, he would have a defence to those charges; if it was simply modified he would not. As the order had been made without jurisdiction, the former course would produce the just result.”
The Home Office could – and did – devise a new set of obligations for LL. But the authorities failed to serve him with the order.
So, why do I disagree with the picture the Prime Minister is painting?
It’s not just about the controversial nature of the orders, and the variety of people and organisations opposed to them throughout the life of the legislation, and the orders themselves. I also disagree with his portrayal because it is our international obligations, in the form of the Convention, being interpreted by the courts, that led to those orders, and Part 4 of the ATCSA being quashed.
It is because his Government was warned that such laws would eventually fall afoul of the courts, prior to the Bills even being granted Royal Assent, that I object strongly to what he is implying.
If the Government wants the ability to put people under house arrest, on the word of the Home Secretary – and I strongly object to that also – then as I see it they need to withdraw from the Convention.
And that, I think, would be a step too far – even for this Government. Although they have derogated before.
Now, I don’t think Tony Blair and co. are stupid. I reserve judgement on whether they have any respect for the rule of law.
So, what do they get out of making such legislation that will eventually suffer problems in the courts?
- they buy time, in that they are seen to be ‘doing something’;
- the Government gets more power;
- they may genuinely believe it is proportionate and necessary;
- it is easier than bringing people to trial;
- it sets a precedent for the further erosion of our liberties (i.e. we use this for terrorists, why not other criminals);
- blame can be shifted, by Blair (as you have seen above) away from the Government and to the courts and people who oppose such legislation.
You can see similar blame-shifting in a previous article.