UK Liberty

Having your Article 5 and eating it

Posted in control orders, politicians on liberty by ukliberty on May 30, 2007

I’m puzzled by the latest comments from “UK terror laws watchdog”, Lord Carlile.

The BBC:

Courts should allow tougher measures to be imposed under control orders, the UK terror laws watchdog Lord Carlile says.

Judges should accept police have “far more understanding” of what is needed to control a terror suspect, he said.

His comments come after three terror suspects who were under control orders absconded last week.

He also warned that ministers would lose a “scarring clash” with courts if they attempted to opt out of the European Convention on Human Rights.

Lord Carlile said, in a speech to a counter-terrorism conference, that the three people who absconded last week showed the need “for more demanding controls”.

“In my view, the courts, should and will now be driven by recent events to re-examine their approach to the conditions and restrictions forming part of control orders,” he said.

Lord Carlile, who was appointed by the government to review terrorism legislation, said: “Once the accuracy of the designation of a controlee as a terrorist suspect has been verified by the court, as a general rule judges should recognise that officials and the police have far more understanding of the restrictions required to effect a control order.”

He said they should then “intervene only where the boundaries of proportionality manifestly have been crossed”.

“I expect the judges to accept this view.”

He said that Britain should not consider opting out of the European Convention on Human Rights – as Home Secretary John Reid said he might consider if it was necessary to deal with terrorist suspects.

“My comment to ministers, is that derogation would lead to extremely difficult parliamentary problems,” Lord Carlile told the conference.

“It would lead to lengthy and testy litigation, and an unwelcome and scarring clash with the senior judiciary which, on balance, the judiciary would be likely to win.

“Most important, derogation is actually entirely unnecessary.”

Instead he called for “statutory clarity” on what are appropriate and effective controls.

Should statute say, for example, that being confined to a residence for 18 hours a day is an “appropriate and effective control”?

How would that work?

I must confess I don’t understand him.

(It would help if the BBC linked to his speech. The Jurist coverage is a little better – at least it tells you where he spoke!)

Control orders consist of a set of obligations. You can see the obligations imposed so far on pages 4-5 of Lord Carlile’s Second Report (216Kb PDF) on the Prevention of Terrorism Act 2005. There are “22 measures used or in contemplation up to now [22 February 2007]”.

A control order is intended to be tailored toward its controlee, so various combinations of obligations are in use, and these combinations are represented in a table on page 5.

Of course I only have the judgements at BAILII to go on, but judges don’t seem particularly cynical about the authorities’ motivation to impose certain obligations.

The problems come when they find that the obligations individually or together amount to a deprivation of liberty contrary to Article 5 of the European Convention on Human Rights (the Convention):

  1. 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:
    1. the lawful detention of a person after conviction by a competent court;
    2. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
    3. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
    4. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
    5. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
    6. 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.
  2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
  3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
  4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
  5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

(Perhaps it’s worth noting that no. 4 is equivalent to habeas corpus, and in England the first recorded usage of this was the year 1305, and dating back to the Magna Carta, originally issued in 1215. I mention this because some people bang on about the Convention but it actually has equivalents to the rights we have enjoyed under our own constitution for some time. Don’t dismiss it just because it has the word ‘European’ in the title).

The famous case JJ, Mr Justice Sullivan’s decision to quash six control orders, which was subsequently upheld by the Court of Appeal (the Government is appealing to the House of Lords), is perhaps the best one to look at as an example, but let’s look first at the law itself: the Prevention of Terrorism Act 2005.

There are two types of obligation: ‘derogating’ and ‘non-derogating’. A derogating obligation is one that is incompatible with the individuals right to liberty under Article 5 of the Convention. A derogating control order consists of one or more derogating obligations.

There doesn’t seem to be much point in discussing derogating orders per se, as only a court may impose one, and only after the Home Secretary derogates from Article 5 of the Convention.

He is given the power to do this by s14 of the Human Rights Act 1998, and Article 15 of the Convention, and there isn’t a derogation order in force at present.

(Incidentally the Law Lords quashed an order in respect of Part 4 of the Anti-Terrorism Crime and Security Act in A & Others v Secretary of State for the Home Department, which is part of the reason for why we have control orders today – but not because it found there was no threat to “the life of the nation”.)

Have a look at paras 60-70, or Annex 1 of the judgement, to see the obligations that in this case were found to amount to a deprivation of liberty.

Now, as Mr Justice Sullivan said at paragraph 43 in JJ:

The importance of protecting members of the public from the risk of terrorism is not in doubt, but the importance of that objective is not a reason for the court to be less inclined to classify the obligations in these control orders as a deprivation of, rather than a restriction upon, liberty.

And that in particular is why I don’t understand what Lord Carlile means when he talks about “proportionality”: there doesn’t seem to be any provision for it.

I don’t mean that Article 5 is absolute, in the same sense as Article 3, the prohibition of torture:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

I mean that there is jurisprudence that says some restrictions haven’t amounted to a deprivation of liberty, some have amounted to a deprivation of liberty, but whatever someone has done (or the state thinks he might do) you may not (without derogating) indefinitely deprive someone of liberty unless you give him a trial.

Mr Justice Sullivan neatly expressed this in the next bit of para 43:

The Convention makes express provision in Article 15 for there to be a derogation from (inter alia) Article 5 “In time of war or other public emergency threatening the life of the nation”.

That facility is carried forward into the Act, which applies the mechanism of a “designated derogation” under section 14 of the 1998 Act: see section 1(10) of the Act and the procedures for making derogating control orders (above).

In the absence of a derogation under Article 15 of the Convention the respondents are entitled to the full protection of Article 5, and there is no justification for any attempt to water down that protection in response to the threat of terrorism.

And the Government’s lawyer made clear that it was “no part of the Secretary of State’s case that the protection afforded by Article 5 should be watered down.”

It seems to me there is definitely a case here of John and Tony wanting their cake and eating it.

For on the one hand they don’t want to water down Article 5 or derogate from it, but on the other hand they don’t want to be bound by it.

One final thing: the three who recently absconded weren’t ‘let off’ by the courts. There was no legal challenge – as far as I know – to their control orders.

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