Counter-Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010 - Human Rights Joint Committee Contents


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.

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Prepared 26 February 2010