On 1 February 2010 the Home Secretary laid before
both Houses the draft Prevention of Terrorism Act 2005 (Continuance
in force of sections 1 to 9) Order 2010. This provides for the
continuation of the control order regime from 11 March 2010 until
10 March 2011. This is the fifth renewal order extending the life
of the control order regime.
Parliament's opportunities to thoroughly scrutinise
these powers are limited. First, parliamentarians have not been
supplied with all the information they need. We call on the Government
to make public at least a summary of the responses of the consultees
whose views are sought by the Secretary of State before the annual
renewal order is laid. Secondly, the affirmative resolution procedure
limits detailed scrutiny. We recommend that extraordinary counter-terrorism
powers, such as control orders, should be made subject to a proper
sunset clause, requiring them to be renewed by primary legislation.
Thirdly, we are concerned about the Government's post-legislative
assessment of the Prevention of Terrorism Act 2005. We believe
that it has mischaracterised the important judgments of MB and
AF by suggesting that the House of Lords has "confirmed"
that the control orders regime operates in a manner fully compliant
with the ECHR. That is not a fair or accurate characterisation
of the effect of the House of Lords judgments.
We have serious concerns about the control order
system. Evidence shows the devastating impact of control orders
on the subject of the orders, their families and their communities.
In addition detailed information is now available about the cost
of control orders which raises questions about whether the cost
the system is out of all proportion to the supposed public benefit.
We find it hard to believe that the annual cost of surveillance
of the small number of individuals subject to control orders would
exceed the amount currently being paid to lawyers in the ongoing
litigation about control orders. Finally, we believe that because
the Government has ignored our previous recommendations for reform,
the system gives rise to unnecessary breaches of individuals'
rights to liberty and due process.
We have previously recommended that the gist of the
allegations against a controlled person should be disclosed to
that person. The Government resisted this. The decision in AF
requires separate consideration be given in each case to whether
a sufficient gist of the allegations and evidence has been given
to the controlled person in the open part of the proceedings to
enable them to give effective instructions to their special advocate.
Although the Government had said that it would be reviewing the
material in each control order in the light of AF, in practice
the Secretary of State has taken a "minimalist" approach
to the decision. We recommend a more thoroughgoing and proactive
review of the material on which the Government relies to sustain
existing control orders with a view to deciding in each case whether
more disclosure is required.
We have previously heard evidence from the special
advocates about the limitations on their ability to perform their
function of providing controlees with the "substantial measure
of procedural justice" required by Article 6 ECHR. Notwithstanding
the rule change which permits special advocates to adduce evidence,
it remains the case that they continue to have no access in practice
to evidence or expertise which would enable them to challenge
the expert assessments of the Security Services. This gives rise
to a serious inequality of arms. In addition there is a significant
problem of late disclosure of closed material by the Secretary
of State to the special advocates. This leaves the special advocates
with insufficient time to scrutinise the closed material and to
challenge the Government's reasons for the material being closed.
This creates the risk of serious miscarriages of justice.
In previous reports we have drawn attention to the
unfairness caused by the rule prohibiting communication between
special advocates and the controlled person or his representative
following receipt of the closed material. We believe that so
long as the rules remain unchanged, the inability of special advocates
to take instructions on the closed case seriously limits the extent
to which they are able to represent the interests of the controlled
person. We conclude that the special advocate system has not
proved capable of ensuring the substantial measure of procedural
justice required. In short, it cannot be operated fairly without
fundamental reforms which the Government has so far resisted.
Our conclusion is that the current control order
regime is no longer sustainable. A heavy onus rests on the Government
to explain to Parliament why alternatives, such as intensive surveillance
of the very small number of suspects currently subject to a control
order, and more vigorous pursuit of the possibility of prosecution,
are not now to be preferred.