UK Liberty

JCHR on control orders

Posted in control orders, politicians on liberty by ukliberty on May 19, 2008

On Wednesday the Joint Committee on Human Rights published its Counter-Terrorism Policy and Human Rights (Tenth Report): Counter-Terrorism Bill.

They commented on the part of the Bill that amends control order legislation. The Committee seems rather annoyed that the Government did not respond to its previous recommendations in this area.

In terms of human rights compliance, “the Government disagrees that there is any need to amend the control orders legislation“. This is despite criticism from the JCHR and court rulings against the Government.

In relation to the claimed policy that the Government prefers to prosecute, the Committee pointed out that “no individual who has been made the subject of a control order has subsequently been prosecuted for a terrorism offence, other than for breach of a control order“. But again the Government disagrees that there is any need for amendments in this area. There is no pre-condition that there be no prospect of prosecution.

The Committee therefore recommended that a statutory duty be imposed on the Home Secretary to keep the cases under review, that decisions not to prosecute be made more transparent, and that the bill be amended to “clarify the approach” to be taken by the courts “when deciding whether the effect of a control order is to deprive of liberty in the Article 5 ECHR sense”, and that the DPP must certify “that there is no reasonable prospect of successfully prosecuting” the suspected terrorist before the Home Secretary may issue a control order.

The Committee suggested a maximum curfew of 12 hours for “controlled individuals”. The Government claims this would “significantly damage the Government’s ability to protect the public from the threat of terrorism.” The Committee, however, notes “that the Government cites no evidence in support of this assertion and that for some time the Home Secretary had reduced the curfews in the most onerous control orders from 18 to 12 hours in light of the judgments of the lower courts”. Not sure the latter proves the Committee’s point, but certainly it would be nice to have substantiated assertions for a change.

The Committee also wants to clarify the meaning of the “deprivation of liberty” under the European Convention on Human Rights. I believed the law (including case law, eg MB) to be pretty clear in this area, as does the Government, but the Committee wants a statutory framework.  It went on to point out that

in July this year the Court of Appeal will be hearing three appeals from decisions of the High Court in control order cases in which the principal issue is precisely what is required by the decision of the House of Lords in MB. It seems likely that the fairness of the operation of the control order regime will before long be back before the House of Lords. This constant litigation about the fundamentals of the statutory framework cannot be desirable, particularly where in the meantime individuals are subjected to very onerous restrictions and obligations. The case for legislative clarification is in our view compelling.

Fair enough!

The Committee also made recommendations regarding fairness of hearings: an amendment to make absolutely clear that nothing in the Prevention of Terrorism Act required a court to act incompatibly with the right to a fair hearing; an obligation on the Home Secretary to give reasons for the making of a control order; an obligation on the Home Secretary to provide “a statement of the gist of any closed material on which fairness requires the controlled person have an opportunity to comment”; to allow judicially authorised communication between special advocate and controlee without having to disclose the questions to the Home Secretary; and to allow special advocates to call expert witnesses.

Now, the bit I don’t understand at all – and I would appreciate assistance – is that

the Prevention of Terrorism Act 2005 be amended to provide that, in a hearing to determine whether the Secretary of State’s decision is flawed, the controlled person is entitled to such measure of procedural protection (including, for example, the appropriate standard of proof) as is commensurate with the gravity of the potential consequences of the order for the controlled person

The Committee also recommends a maximum duration on individual control orders.

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