Joint Committee On Human Rights Eighth Report

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)


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)


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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