UK Liberty

Lord Carlile’s Third Report on Control Orders

Posted in control orders, politicians on liberty by ukliberty on February 22, 2008

  has been published (473Kb PDF), three days before the annual ‘debate’ on the renewal of the legislation, and the Joint Committee of Human Rights published its report this week too, confusingly titled “Tenth Report: Counter–Terrorism Policy and Human Rights (Ninth Report): Annual Renewal of Control Orders Legislation 2008“.

Among other things, Lord Carlile’s report has some very useful summaries of the court cases thus far, and the obligations under each of the control orders.

Now, as Lord Carlile says, he has access to all the information the Home Secretary has when deciding to issue a control order, so this particular point is interesting:

I should like to see further detail given to the Home Secretary in every case as to why additional investigation, or different forms of evidence gathering,might not enable a criminal investigation.


Nobody, least of all those who have to administer and enforce them, likes control orders. Other measures may be more appropriate – perhapsAnti-Social Behaviour Orders, or civil proceedings for an injunction against specified activities.

Nevertheless, Lord Carlile remains of the view that

as a last resort (only), the control order system as operated currently in its non-derogating form is a justifiable and proportional safety valve for the proper protection of civil society.

– and that he would have issued a control order in every case in which the Home Secretary has done so.

Some highlights from the debate:

Tobias Ellwood (Bournemouth East, Conservative) | Hansard source

I should be grateful if the Minister continued to take interventions, which would allow us to tease out the Government’s strategy on countering terrorism, because I understand that we have not had a proper debate. If this is it, I am afraid that one and a half hours does not do the issue justice. To bring him back to my question, he says that he does not have time to talk about what the threat in Britain is, but surely that is the starting point. The House should understand and debate what that threat is before renewing any more orders.

Tony McNulty (Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office) | Hansard source

I dispute the hon. Gentleman’s tail-end point, but this is most profoundly not the occasion on which to have that wider debate. … I agree with the hon. Gentleman’s introductory point in part, which is why I have tried to reiterate what I think everyone in the House knows anyway, which is the serious nature of the threat. However, in respect of his broad comments about how we should have that wider debate with regularity, I am happy that that should be the case.

Dominic Grieve (Beaconsfield, Conservative) | Hansard source

… The background history to this matter is, in a sense, engraved on my heart, given that it started with a marathon 36-hour sitting of the House in 2005. It is significant that much of what was proposed by the Government in an effort to reach a compromise at the end of the stand-off between the House of Commons and the House of Lords has not really occurred. At the time, it was intimated in debate that these powers were required to deal with several hundred people. That is what the then Prime Minister, Mr. Blair, said; it was one of the strongest arguments advanced. We now know, however, that a maximum of 31 individuals have been dealt with under this procedure.

The JCHR’s report points out,

The Committee continues to support the policy professed by the Government of preferring to prosecute as a first resort. However, the fact that no individual who has been made the subject of a control order has subsequently been prosecuted for a terrorism offence calls into question the extent to which priority is given to criminal prosecution in practice. After the House of Lords judgment in the case of E, the Committee considers that changes to the control orders legislation are necessary to ensure that prosecution is treated as a priority and recommends amendments, including a new requirement that, except in urgent cases, the Secretary of State may only make a control order where she is satisfied that there is no reasonable prospect of a successful prosecution for a terrorism-related offence (paragraphs 60-76).

It also says of Lord Carlile’s report that it

differs from his previous reports on control orders: he has now reached the view that only in rare cases can control orders be justified for more than two years, and he recommends that there should be a presumption against extension of a control order beyond two years, save in genuinely exceptional circumstances.[23] This is significant because seven of the 15 individuals who are currently the subject of control orders have been so for more than two years, and of those seven, two have been on control orders for three years and, presumably, before that were detained for more than three years in Belmarsh under the Anti-Terrorism, Crime and Security Act 2001. We comment on this in more detail in chapter 6 of this Report.

Also that the opportunity for parliamentary scrutiny of the legislation has been limited, perhaps deliberately so.

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