The Renewal of Control Orders before the UK Parliament

At the end of February the UK Parliament’s Joint Committee on Human Rights reconsidered the use of Control Orders under the Prevention of Terrorism Act 2005, which the Home Secretary (Alan Johnson, pictured left) has asked Parliament to renew for another year from 11 March (the fifth such renewal). Control Orders impose “tailored” restrictions upon individuals on whom they are imposed, which typically involve relocation of the individual, restricted contact with friends and family and a denial of access to the internet and other unmonitored forms of communication.

The Home Secretary informed Parliament in formulaic language based upon the wording of the PTA 2005, that, ‘the powers are needed to ensure that a control order can continue to be made against any individual where the Secretary of State has reasonable grounds for suspecting that individual is or has been involved in terrorism-related activity’. The chief argument marshalled in favour of the orders was that, ‘it is necessary to impose obligations on that individual for purposes connected with protecting members of the public from a risk of terrorism’.

This positive obligation on the government to maintain adequate safeguards to protect the public from threats to their daily lives is recognised by the Committee to flow from ‘human rights law’ (see [7]), and British Government has repeatedly attempted to link its actions to the positive obligations imposed be the Right to Life (Art 2 ECHR) in the legal battles surrounding Control Orders (which, the Report reveals, have cost the Government £8.1 million – see [102]). However, whilst the courts have acknowledged this responsibility upon the Government, they have been eager to root this responsibility in the Hobbesian proposition that government exists to maintain a stable society rather than to recognise such broad “positive” obligations under the ECHR. This can be seen in Lord Hope’s response to these arguments in the Control Order case of AF last summer, where he held that, ‘the first responsibility of government in a democratic society is owed to the public. It is to protect and safeguard the lives of its citizens’ ([2009] UKHL 28, [76]). Moreover, whilst Lord Hope recognised that government had such a role, he counter-balanced it with the courts’ duty, ‘to protect and safeguard the rights of the individual’.

On this basis Lord Phillips asserted that the information provided to controlees to allow them to dispute the Orders would be inadequate in circumstances, ‘[w]here … the open material consists purely of general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be’ (at [59]). In light of the decision in AF, a serious question mark hung over the ongoing effectiveness of the Control Orders regime, as its primary usefulness for the British Government had been as a means of constraining the activities of individuals on the basis of “closed” intelligence, rather than evidence which would be open to challenge in court.

More significantly, the Committee asserted that the manner in which Control Orders are being used had the potential to exacerbate a feeling of alienation amongst Muslims in the UK (at [45]):

‘We are particularly concerned about the apparent increase in resort to conditions in control orders which amount to internal exile, banishing an individual and, effectively, his family, from his and their community. We have very grave reservations about the use of such historically despotic executive orders, and the contribution they undoubtedly make to “the folklore of injustice.”’

In light of the AF decision and the impact on community relations the Joint Committee on Human Rights recognised that the continuing application of the Control Orders regime was unsustainable (at [109]):

‘In view of the many problems with the control order regime in practice, documented in this report, we find that we cannot agree with Lord Carlile’s conclusion that “the control orders system functioned reasonably well in 2009, despite some challenging Court decisions.” Although strictly speaking the Government is correct to say that the legal framework of control orders is not inherently unlawful, we are firmly of the view that in order to operate the system compatibly with human rights, in the absence of a lawful derogation, would lead to its costs far outweighing its benefits compared to other alternative means of achieving the same ends, and we therefore conclude that the control order system is simply unsustainable.’

Last week the renewal was debated in the House of Commons and House of Lords. In spite of the Joint Committee on Human Rights’ Report, the measures were renewed. As the Committee noted, the process of renewal is by an affirmative resolution Statutory Instrument rather than by full Act of Parliament (see [14]), which resulted in a stultified debate in which the powers were renewed without any great enthusiasm, all but nullifying one of the key safeguards (annual renewal) established under the PTA 2005. This process seems doomed to be repeated until the British Government finds a face saving way to retreat from Control Orders.