Conclusions and recommendations
Parliamentary scrutiny of the human rights compatibility
of control orders
1. In
our view, a debate on a motion to approve an affirmative resolution
is a wholly inappropriate procedure for renewal of provisions
of such significance. To fail to provide an opportunity to amend
the legislation is also, for the second year running, a serious
breach of commitments made to Parliament. Parliament is being
deprived once again of an opportunity to debate in detail and
amend the control orders regime in the light of experience of
its operation and concerns about its human rights compatibility.
We draw this matter to the attention of each House. (Paragraph
15)
2. This
provided an even more limited opportunity to consider and if necessary
report in the light of Lord Carlile's Report than we received
last year. We draw this matter to the attention of each House.
(Paragraph 17)
Deprivation of liberty
3. We
acknowledge that the litigation concerning the compatibility of
a significant number of current control orders with Article 5
has yet to run its course. However, we are concerned that the
Home Secretary is asking Parliament to renew a power which not
only this Committee but now the High Court and the Court of Appeal
have said is being routinely exercised in breach of one of the
most fundamental of all human rights, the right to liberty in
Article 5 ECHR. (Paragraph 28)
4. In
our view, if the House of Lords or the European Court of Human
Rights eventually decides that the control orders which have been
challenged are unlawful in the absence of a derogation, the Government
will effectively have been operating a de facto derogation from
Article 5. Knowing how the power is currently being exercised
by the Government, Parliament in our view is being asked to be
complicit in such a de facto derogation, without an opportunity
to debate whether such a derogation is justified. We draw this
matter to the attention of each House. (Paragraph 29)
Due process
5. We
acknowledge that the Court of Appeal in MB has upheld the compatibility
of the control order regime with the right to a fair hearing in
Article 6(1) ECHR and has considered and dismissed many of the
due process concerns raised in our first renewal report. However,
we remain of the view expressed in our earlier report. For the
reasons given in that Report we are doubtful whether the procedures
for judicial supervision of control orders in PTA 2005 in fact
secure the substantial measure of procedural justice that is claimed
for them. (Paragraph 37)
6. In
our view, (Paragraph 38)
Prosecution
7. In
our view, this important observation by Lord Carlile confirms
our concerns in our report on Prosecution and Pre-Charge Detention
that the Government is not as committed to prosecution as a last
resort as it professes to be. This part of Lord Carlile's Report
provides important evidence in support of those who fear that
once a control order is imposed it relieves the pressure on the
police and the Home Office to bring a criminal prosecution. (Paragraph
48)
8. Lord
Carlile's belief that continued investigation could yield such
prosecutions, and the fact that he considers it necessary in his
report to encourage such investigation to continue, suggests to
us that at present there is insufficient continuing investigation
with a view to prosecution. (Paragraph 49)
9. .
In our view, the judgment therefore provides further powerful
evidence confirming our concerns about the seriousness of the
Government's commitment to prosecuting as its first preference.
The lack of effective systems to keep the prospects of prosecution
under review, revealed by this case, belies the Government's professed
commitment to do so. (Paragraph 54)
Effectiveness of the control orders regime
10. In
our view, however, this explanation raises questions about whether
control orders are being used for the purposes for which Parliament
was told they were necessary during the passage of the 2005 Act,
namely to protect the public from the risk of harm by suspected
terrorists. (Paragraph 61)
11. The
main significance, however, of the fact that the subjects of three
control orders have either absconded or disappeared is that it
shows the limitations of control orders as a means of protecting
the public. In our view, this again demonstrates the urgency of
bringing forward measures to facilitate prosecution, which will
provide much more effective protection for the public. (Paragraph
62)
Conclusion
12. In
light of the concerns expressed in this report, we have reached
the same conclusion as in last year's report on renewal of control
orders: we seriously question renewal without a proper opportunity
for a parliamentary debate on whether derogations from Articles
5(1) and 6(1) ECHR are justifiable, that is, whether the extraordinary
measures in the Prevention of Terrorism Act 2005, which the Government
seeks to continue in force, are strictly required by the exigencies
of the situation. In our view, Parliament should therefore be
given an opportunity to debate and decide that question. (Paragraph
63)
13. We
also draw to Parliament's attention our serious concerns about
the vigour with which the Government is pursuing prosecution as
its preferred counter-terrorism measure, and what we now consider
to be the urgency of the need to bring forward measures to facilitate
prosecution. (Paragraph 64)
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