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


Annual Renewal of Control Orders Legislation 2010


Introduction

1. 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,[1] along with an Explanatory Memorandum ("EM").

2. The draft Order provides for the continuation of the control order regime contained in sections 1 to 9 of the Prevention of Terrorism Act 2005 ("the PTA 2005") for another year from 11 March 2010 (when those provisions would otherwise expire) until the end of 10 March 2011.

3. The EM explains 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 and it is necessary to impose obligations on that individual for purposes connected with protecting members of the public from a risk of terrorism."[2]

4. The Home Secretary has made a statement of human rights compatibility in respect of the draft Order: "In my view the provisions of the Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order are compatible with the Convention rights."[3]

5. The draft Order is expected to be debated in the House of Commons on 1 March 2010 and in the House of Lords on 3 March 2010.

6. This is the fifth renewal order extending the life of the control order regime.[4] Our predecessor Committee reported on the 2005 Bill which introduced the control order regime,[5] and we have reported on all four of the previous annual renewals.[6] In our reports on the Counter Terrorism Bill we recommended a number of amendments to the control orders regime which we considered necessary in order to render it human rights compatible.[7] Some of our recommended amendments were extensively debated when the Counter Terrorism Bill was in Committee in the Lords,[8] and some were voted on at Report stage and narrowly defeated.

7. As in all our reports on counter-terrorism policy and human rights, we approach the question of the renewal of control orders in agreement with the Government about the importance of the positive obligation imposed on the State by human rights law, to take effective steps to protect the public from the real threat of terrorism. In our earlier reports, we have consistently maintained that a regime of less restrictive civil restriction orders with proper due process guarantees would be capable, in principle, of being compatible with both the right to liberty and the right to due process. However, we have consistently raised a number of human rights concerns about the control orders legislation that we have got and the way it operates in practice.[9]

8. In this report we consider whether the system of control orders is sustainable in the light of significant developments since last year's renewal, including important court judgments and the availability of more detailed information about the cost of control orders. We took evidence from the Minister, the Rt Hon David Hanson MP, on this subject amongst others, on 1 December 2009[10] and from three special advocates[11] and two solicitors[12] with experience of representing controlees on 3 February 2010. We invited the Minister to give us oral evidence on that date as well but he was not available, and we draw attention to the fact that, in the time available, the Government has not had an opportunity to respond to the oral evidence we took.

Parliamentary scrutiny

9. We have often commented in the past on the shortcomings in the arrangements for parliamentary scrutiny of the renewal of control orders.[13] The Government has made some improvements in response to these criticisms and we have therefore considered, in the light of those changes, whether the arrangements for scrutiny are now adequate.

10. The annual report of the statutory reviewer of the PTA 2005, Lord Carlile of Berriew QC, was also published on 1 February 2010, at the same time as the draft Order and Explanatory Memorandum. We welcome the timely publication of the reviewer's report, in accordance with our previous recommendation that such reports should be published at least a month before the debate in Parliament to which they are relevant, in order to facilitate proper parliamentary scrutiny. We consider Lord Carlile's report in detail below.

11. Along with Lord Carlile, we have also called for the Secretary of State's quarterly reports to Parliament to provide more detail and to be less in the form of a statistical bulletin. We welcome the more informative quarterly reports on control orders that the Secretary of State has made to Parliament, although we note that these still fall short of the equivalent reports made by the relevant minister to the Canadian Parliament.

12. While we welcome these significant improvements in the arrangements for parliamentary scrutiny, there are two respects in which in our view there is still considerable room for improvement. We note that section 13(3) of the PTA 2005 requires the Secretary of State to consult not only the statutory reviewer of the Act but also the Intelligence Services Commissioner and the Director-General of the Security Service before laying a renewal order. The Explanatory Memorandum records the fact that the Secretary of State has consulted all the necessary consultees but merely states that they were "content with the proposal to renew the Act."[14] Lord Carlile's reasons are explained in full in his report, but as far as the Intelligence Services Commissioner and the Director-General of the Security Service are concerned, no further explanation or even summary of their reasons is given.

13. We would have been assisted in our scrutiny of the justification for renewal of the control orders regime if we had known more about the responses of the Intelligence Services Commissioner and the Director-General of the Security Services to the Secretary of State's consultation. We would be surprised and concerned if the Director-General had not conducted a fundamental review of the costs and benefits of control orders following the significant court judgments in the last year, and in our view an explanation of that thinking should be made available to Parliament. Given the considerable controversy which exists about the continued justification for control orders, we consider that Parliament is entitled to more than an assertion that they are "content" with the proposal to renew. We obviously do not expect the disclosure of sensitive information but between bare assertion and damaging disclosure there is still considerable room for sensible explanation. We recommend that in future, where the Secretary of State is required by statute to consult certain officers before renewing a counter-terrorism power, at least a summary of the consultee's response be published in order to facilitate parliamentary scrutiny of the justification for the renewal.

14. We have commented previously on the importance of proper "sunset clauses" in legislation providing the Government with powers which Parliament recognises as extraordinary, the justification for which is in need of frequent parliamentary review. Control orders clearly qualify as an example of such extraordinary powers. A proper sunset clause is one which provides for statutory provisions to lapse altogether after a specified period, requiring the Government to bring forward new primary legislation to renew the powers. The mechanism of annual renewal by an affirmative resolution SI, used in the PTA 2005, whilst providing an opportunity for parliamentary scrutiny of the justification for renewal, is much less of a safeguard. It is very rare for the House of Lords to move fatal amendments to Government motions to approve affirmative resolution statutory instruments.[15] The Government has argued that this should be a strong constitutional convention. There is also in practice a stronger onus on the Government to justify powers which it proposes to take in primary legislation. The annual renewal debates on control orders are poorly attended, despite the significance of the issues at stake. We recommend that, in future, counter-terrorism powers as extraordinary a departure from principle as those contained in sections 1-9 PTA 2005 be made subject to a proper sunset clause, requiring them to be renewed by primary legislation.

Events since the last annual renewal

15. In our last report on the annual renewal of the control orders regime, in February 2009, we pointed out to the Government that the recent decision of the Grand Chamber of the European Court of Human Rights in A v UK[16] left no room for doubt that basic fairness requires that the controlled person be provided with the gist of the closed material which supports the allegations made against them, otherwise the controlled person is not in a position effectively to challenge those allegations.[17]

16. In A the Grand Chamber unanimously held that there had been a violation of the right in Article 5(4) ECHR to have the lawfulness of detention decided by a court in the cases of four of those who were detained under Part IV of the Anti-Terrorism, Crime and Security Act 2001, which preceded the control orders regime. The Court held that the evidence on which the state relied to support the principal allegations made against the four individuals was largely to be found in the closed material and was therefore not disclosed to the individuals or their lawyers. It said that special advocates could not perform their function, of safeguarding the detainee's interests during closed hearings, in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. There was a violation of the right to a judicial determination of the legality of detention because the four detainees were not in a position effectively to challenge the allegations against them.[18]

17. In light of that clear ruling of the European Court of Human Rights, we again recommended that to make the control orders regime compatible with human rights the law had to be amended to require the disclosure to the controlled person of the essence of the case against him.[19] Unless the legal framework was amended in this way, we warned that it was inevitable, in light of the recent ruling of the European Court of Human Rights in A v UK, that there would be cases in which individuals are denied the right to a fair hearing.

18. In May 2009 the Government rejected our recommendation, on the basis that it "continues to disagree with the JCHR" about the correct interpretation of what Article 6 ECHR (the right to a fair hearing) requires.[20] The Government believed that the approach of the majority of the Court of Appeal was correct when it found in the case of AF that there is no minimum amount of disclosure that must be made to controlled persons in order for the proceedings to comply with Article 6.

19. When AF came before the House of Lords the Government sought to avoid the application of A v UK to control orders by arguing that the reasoning of the Grand Chamber only applied to deprivation of liberty cases (as indicated above, A v UK itself concerned the regime for detaining foreign nationals suspected of terrorism under Part IV of the Anti-Terrorism, Crime and Security Act 2001).

20. On 10 June 2009 the House of Lords held, unanimously, that basic fairness requires that people who are subjected to control orders are given sufficient information about the allegations against them to enable them to give effective instructions to those representing them.[21] The Government's argument that A v UK only applied to deprivation of liberty cases was rejected: the minimum disclosure necessary for a fair trial would be the same whether the matter was considered under Article 5(4) ECHR in deprivation of liberty cases or under Article 6(1) ECHR in the case of non-derogating control orders. The Law Lords held that a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against them. Lord Phillips, who gave the leading judgment, held:[22]

    Where … 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.

21. Once the House of Lords had held, in light of the Strasbourg case-law, that Article 6 requires that the essence of the allegations against a controlled person must be disclosed to enable him to give effective instructions in relation to those allegations, it was clear that the basis for the Government's rejection of our recommendation in our last Report on Control Orders renewal was no longer tenable.

22. We therefore wrote to the Home Secretary the day after the House of Lords judgment, on 11 June 2009, asking how the Government intended to respond to the judgment in AF.[23] We asked whether the Government would now bring forward amendments to the Prevention of Terrorism Act 2005 and the Civil Procedure Rules to make it clear beyond doubt on the face of the legal framework that:

    (a) individuals who are subjected to control orders are given sufficient information about the allegations against them to enable them to give effective instructions to those representing them and

    (b) the absolute requirement of non-disclosure is qualified by the right of the controlled person to a fair hearing.

23. We also asked whether the Home Secretary considered it desirable for Parliament to have an early opportunity to debate the appropriate response to the decisions of the House of Lords and the European Court of Human Rights on an issue of this importance. We asked for a prompt response, bearing in mind the seriousness of the restrictions on those subjected to control orders which may have been made unfairly, the importance of parliamentary consideration of the implications of the House of Lords judgment and the imminence of the long parliamentary recess which would make parliamentary consideration of the issue impossible until October.

24. The Home Secretary sent a holding reply on 25 June 2010 saying that he was carefully considering the judgment and reviewing his options but was not yet in a position to respond to the Committee's questions. In the meantime, the Home Secretary wrote to all those representing controlees, and their special advocates, indicating that the Government would be reviewing all current control order cases in the light of the House of Lords judgment, considering in each case whether further disclosure could be made or whether to revoke the control order.[24]

25. The Home Secretary eventually replied substantively to our letter more than three months after it was sent, on 15 September 2009,[25] and made a written statement to Parliament on 16 September.[26] He said that the Government had now reviewed all current control order cases in the light of AF, and it was clear that not all control orders would be adversely affected by the judgment, because the new test for disclosure could be met in some cases, but the Government recognised that the judgment will require a greater degree of disclosure to be made in other control order cases. The control order in AF itself had been revoked because the Home Secretary had decided that the disclosure required by the court could not be made. In another case the Home Secretary had decided to make the disclosure ordered by the court in order to maintain the control order in force. In one case, AN, the court directed that the control order be revoked because non-disclosure denied the controlled person of the essence of the case against him, but the Home Office immediately served him with another, less restrictive control order without making any further disclosure.[27] In other cases, the Home Secretary has revoked the control order and replaced it with a "light touch" control order with far less restrictive obligations but no further disclosure and argued that Article 6 ECHR does not apply. That argument has been rejected by the High Court[28] but that decision is on its way to the Court of Appeal and the issue may very well end up back before the Supreme Court.

26. The Home Secretary's current assessment was therefore that the control orders system remains viable, and that the national security reasons for maintaining the regime have not changed. However, he intended to keep this assessment under review as control order cases continued to be considered by the courts, and he asked Lord Carlile to report on whether the system remains viable as part of his annual report on the operation of the control orders legislation. The Home Secretary also said that the Government did not intend to bring forward any amendments to the relevant statutory provisions or procedural rules: such amendments were unnecessary because the PTA 2005 "now reads as amended by the House of Lords" and to amend the law to clarify this might lead to unintended consequences. Nor did the Government consider it necessary for Parliament to have an early opportunity to debate the appropriate response to the House of Lords judgment: it was for the High Court to consider the implications of the House of Lords judgment for individual control orders and "the scope for sensible Parliamentary debate at this stage would appear to be limited."

27. According to the Home Secretary's most recent quarterly report, on 15 December 2009,[29] 12 control orders are currently in force, nine of which are in respect of British citizens. Between September and December six control orders were revoked: three because it was not possible to meet the disclosure test set out in AF; two because they were no longer considered to be necessary; and one on the order of the court. In two of the cases where the control order was revoked because the more stringent disclosure test could not be met, new control orders with significantly reduced obligations ("light touch control orders") had been imposed in their place.

28. The revocation of control orders as a result of the decision of the House of Lords in AF has given rise to the question whether the Secretary of State is liable to pay compensation to those who were the subject of control orders that, it has now been established, were unlawfully made because the controlees had never been told the gist of the case against them. On 18 January 2010 the High Court held that where, because of the requirements of Article 6 ECHR, as interpreted by the House of Lords in AF, the Secretary of State withdrew the material relied upon in support of two control orders so that the orders could not be maintained, the control orders should not merely be revoked prospectively but should be treated as if they never had any lawful effect.[30] The significance of this is that it opens the way to claims for damages by those controlees arising out of the unlawful imposition of a control order on them. Moreover, the High Court also held that the disclosure requirements identified by the House of Lords in AF apply to such a claim for damages by a controlee. The Government is appealing to the Court of Appeal against this decision.

The Government's case for renewal

29. On 1 February 2010 the Government published three documents which between them contain the Government's case for renewal of the control orders regime:

    (1) the Explanatory Memorandum to the draft Order;

    (2) the Home Office's Memorandum to the Home Affairs Committee containing its post-legislative assessment of the control orders legislation[31] (hereafter "the Home Office Memorandum"); and

    (3) the Fifth Report on Control Orders by Lord Carlile, its Reviewer of terrorism legislation[32] (hereafter "the Carlile Report").

THE EXPLANATORY MEMORANDUM

30. The Explanatory Memorandum accompanying the draft renewal order explains that the order does not change the Government's policy relating to control orders, it simply provides for the regime to continue in force for another year.[33] The essence of the Government's reasons for seeking Parliament's approval to renew the control order regime is that "control orders are a key measure for addressing the threat posed by suspected terrorists who cannot currently be prosecuted or, in respect of foreign nationals, removed from the UK", and they remain necessary because, over the past year, the terrorist threat level to the UK has been assessed as either "Severe" or "Substantial", both of which signify a serious threat to the UK.[34]

THE HOME OFFICE MEMORANDUM

31. According to the Home Office Memorandum, "the Government's overall assessment is that control orders remain an important counter-terrorism power for protecting the public from the risk of terrorism. They are the best available disruptive tool for addressing the threat posed by suspected terrorists whom we can neither prosecute nor, in the case of foreign nationals, deport."[35] The national security reasons for maintaining the control order regime are said to remain strong (relying on Lord Carlile's conclusions in his Report, considered below). Although there have been seven absconds from control orders, there have been none since June 2007 and the Government's assessment is that in some cases control orders have prevented controlled individuals from involvement in terrorism-related activity, while in others (the majority) they have restricted and disrupted that activity without entirely eliminating it.[36]

32. After the decision of the House of Lords in AF, the Home Secretary said that his preliminary assessment was that the control order regime remained viable, but that he would keep that assessment under review. In the Home Office Memorandum, the Government maintains its view that the control order regime continues to be a viable and necessary part of the Government's counter-terrorism strategy, in the light in particular of three High Court judgments since September 2009 upholding individual control orders after considering them for compliance with the requirements of Article 6 ECHR following the decision in AF.[37] That overall judgment, that the system remains viable, is said to be not affected by the ongoing litigation about whether Article 6 ECHR applies to "light touch control orders" and about possible claims for compensation by those whose control orders have been quashed.

33. The Home Office memorandum also considers the argument that maintaining the control order regime is extremely costly, but concludes that "viable alternatives to control orders that offered similar levels of assurance against risk, such as surveillance, would be considerably more expensive."[38]

THE CARLILE REPORT

34. The Carlile Report combines the Reviewer's annual report on the operation of the control orders legislation in 2009 and his "viability review" which he was asked by the Home Secretary to conduct in September 2009 to assess whether the control order system continues to be viable after the House of Lords decision in AF.

35. Lord Carlile concludes that the control orders system remains necessary for a small number of cases, in the absence of a viable alternative for dealing with individuals who pose a risk to the public but cannot be prosecuted, deported or dealt with in any other way.[39] He has considered whether control orders can or should be replaced, but has been unable to find or devise a suitable alternative that would be as effective in disrupting terrorism-related activity. Control orders continue to play a significant part in making it more difficult for terrorists to undertake such activity. The potential cost of losing control orders is that the UK would be more vulnerable to a successful terrorist attack.[40] Abandoning the control orders system entirely would therefore have a damaging effect on national security in Lord Carlile's view.[41]

36. Lord Carlile also concludes that "the control orders system functioned reasonably well in 2009, despite some challenging Court decisions."[42] He considers that the "review procedure has proved effective"; [43] he has received no complaints from controlees or lawyers instructed by them to the effect that court procedures are not working satisfactorily;[44] and "the rules of court continue to work reasonably well."[45] He reports that he has received "anxious representations" from the special advocates about their role in control order cases.[46] However, while he reports that he is "broadly sympathetic" to their concerns, "improved training and closer co-operation should resolve them."[47]

37. Lord Carlile says that he has considered the effects of the Court decisions on disclosure, but he does not agree that their effect is to make control orders impossible: for most cases, it should be possible to provide sufficient disclosure to comply with legal requirements without damaging the public interest. As in all previous years, Lord Carlile reports that, having seen the intelligence material on which the Home Secretary makes his decisions, he would have reached the same decision as the Secretary of State in each case in which a control order was made.[48]

38. However, Lord Carlile thinks that the control order system can be improved. He thinks that control orders are no longer suitable for cases where the main objective is to prevent travel abroad.[49] He recommends that in such cases control orders should be replaced by a new preventative order, a "Travel Restriction Order", which would contain a narrower range of obligations than a control order, but would still be based on an intelligence-based risk assessment and made following consideration of closed evidence.

The impact of control orders on controlees, their families and communities

39. We have consistently expressed our concern in previous reports about the impact of control orders on controlees, their families, and the communities from which they come.[50] According to the Home Office Memorandum, however, the impact of control orders on the physical and mental health of an individual and his[51] family is taken extremely seriously by the Government, both when a control order is considered and imposed, and on an ongoing basis.[52] Lord Carlile gives a similar account: the Control Order Review Group ("CORG") monitors the impact of control orders on the individuals concerned, including on their mental health and physical well-being, as well as the impact on the individual's family, especially any children living with them.[53] He reports that control orders are sometimes modified in light of that monitoring where there is concern about the impact of the order.

40. The Government's and Lord Carlile's accounts of the attention that is paid to the impact of the control order on the individual and their family were strongly disputed by two solicitors with experience of representing individuals who are the subject of control orders. Gareth Peirce, who has many years' experience of acting in terrorism cases and has represented a number of individuals subject to control orders, described the primary sensation of those subject to a control order as being one of "despair" and feeling "utterly impotent".[54] She described how at one point three of her clients who were under control orders were all in the health section of Belmarsh Prison, imprisoned because they were in breach of their control order, all having made serious attempts on their lives, and all of whose wives had left them temporarily or permanently. She described the impact of the order, on the person himself and his family, as "colossal". The whole family is affected by the conditions of the control order, which, for example, prevent visits to the house without authorisation and prohibit the use of phones or computers and the internet. The last of these restrictions has a particularly severe impact on children over the age of about 7, for whom access to the internet is an important part of their school curriculum.

41. We heard with alarm about the "growing use" of conditions in control orders which require the controlled person to move out of the community in which they live and stay away from it - "a form of internal exile" as it was described. We learned that these "relocation conditions" are being used to require British citizens who have grown up in a particular community to uproot themselves from that community and move to a new and unfamiliar location. The impact of such relocations on the controlled person's families was described as "extraordinary". The female partners of controlees, we heard, "are treated with complete contempt",[55] told that they can either stay where they are or move to the new location and find a new job. Children are uprooted from the schools they have been attending and forced to relocate in order to be with their family. Moreover, such treatment was having a disproportionate impact on the Muslim community which the Government says it is seeking to reassure: Gareth Peirce said "this may affect only a small group of people but in terms of its contribution to what one might call the folklore of injustice it is colossal." Our witnesses' sense that such relocations were becoming more frequent has since been confirmed. In a written answer to a question put down by our Chair, the Minister has confirmed that of the 12 individuals subject to control orders on 10 December 2009, eight had been required to (and had) relocated, although two relocations were subsequently overturned by the court.[56] As the Government increasingly resorts to "lighter touch" control orders, so it seems the use of such relocation conditions is set to increase.

42. We also heard from the controlees' lawyers about the effect of the legal process being so protracted. The slow service of evidence, the need for the special advocates to be able to do their job, the secret hearings to consider closed evidence, these all mean that it is an extraordinarily prolonged process with no immediate remedy.[57] The long and drawn out procedures also mean that in practice, by the time that a request for a modification to a control order has been considered, refused and appealed against, the whole point of seeking the modification has been made redundant by the passage of time.[58] One of the examples given was of a request to vary a condition in a control order to enable the controlee to attend a college course, but the course was finished by the time his modification appeal had been resolved.

43. Gareth Peirce also made the point to us in evidence that all of the main court decisions about the human rights compatibility of the control order regime had been on procedural issues, as opposed to the impact of the control orders on the individuals concerned: "however strong the arguments and the evidence that one has that this is destroying someone, he is going to kill himself, his life is in danger, those arguments do not win in the courts as being disproportionate to the measures and the reasons given for them."[59] In her view, control orders are simply disproportionate when the impact on the individual concerned is compared to the benefit it is sought to achieve.

44. As we pointed out above, we have not had the opportunity to hear the Government's response to the oral evidence of the solicitors representing the controlees. However, we remain extremely concerned about the impact of control orders on the subject of the orders, their families and their communities. There can be no doubt that the degree of control over the minutiae of controlees' daily lives, together with the length of time spent living under such restrictions and their apparently indefinite duration,[60] have combined to exact a heavy price on the mental health of those subjected to control orders. The severe impact on the female partners and children of the controlees, including on their enjoyment of their basic economic and social rights as well as their right to family life, is an example of the "collateral impact" of counter-terrorism measures recently identified by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.[61] These concerns grow more acute the longer a control order against the same individual subsists.

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."

46. Moreover, the UK has not ratified the Protocol to the ECHR which recognises freedom of movement as a fundamental human right in the ECHR system,[62] but it is already recognised as such within the legal order of the European Union. It seems to us likely that it is only a matter of time before executive "requirements to relocate" in control orders are found to be incompatible with the fundamental right of a citizen to move freely within the territory of one's state.

Basic fairness of control orders

47. In a series of reports we have expressed serious concerns about the basic fairness of the system of control orders.[63] During the passage of the Counter Terrorism Bill in 2008 we proposed a number of amendments to the legal framework governing control orders designed to ensure that in future control order proceedings could operate in a way which secured to the controlled person the "substantial measure of procedural justice" to which he is entitled under both Article 6 ECHR and the common law.

48. One of the most significant recommendations that we made was that the statutory framework should be amended in order to require that the gist of the allegations against a controlled person always be disclosed to that person to enable them to give instructions to those representing their interests. The Government resisted that recommendation but, as we have explained above, the House of Lords in AF has now required that the statutory scheme be read as if it included such a requirement. We sought to discover from the special advocates and some of the lawyers who represent controlees the extent to which the House of Lords decision in AF had made a difference in practice to the fairness of control order proceedings.

DISCLOSURE OF THE ESSENCE OF THE CASE AGAINST

49. The decision of the House of Lords in AF was widely reported in the press as a ruling that the entire control orders system is unlawful, or that the use of secret evidence in control order cases is itself unlawful. This is not the case. The decision in AF requires separate consideration to 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. As one of the special advocates put it in evidence, "What AF decided was that somebody has the right to know the essence of the case against them. What that means in practice is quite difficult to determine in an individual case."[64]

50. We heard from the special advocates that, although the Government had said that it would be reviewing the material in each case in the light of AF to see whether further disclosure could be made or whether the control order should be revoked, in practice the Secretary of State has taken a "minimalist" and essentially passive approach to the decision in AF, not voluntarily disclosing any more material but leaving it to the special advocates to make the running on what more should be disclosed and waiting for the courts to tell the Secretary of State what material he cannot rely on unless he discloses it.[65] We were told that the decision therefore had not led in practice to much more disclosure. Where further disclosure was thought to be necessary, control orders had been revoked and replaced by less stringent orders ("light touch control orders"), to which it was argued AF does not apply because the less severe restrictions do not determine civil rights within the meaning of Article 6(1) ECHR. In cases where the decision in AF clearly required more disclosure, we were told that the Government's approach was to disclose "headline allegations" only, such as the individual concerned is involved in terrorist training, whereas the decision of the European Court of Human Rights in A v UK appears to suggest that a greater degree of detail than that is required, such as when and where they are alleged to have engaged in such training.[66] The special advocates' view, therefore, was that, from their perspective, the Government's approach to disclosure since the decision in AF was not in keeping with the spirit of that decision,[67] and even possibly not in keeping with the letter of the underlying Strasbourg decision in A v UK.

51. We also heard that the lower courts are in some cases adopting an approach to disclosure following AF which is causing further practical difficulties for controlees and special advocates and which may also be causing unfairness to controlees. We were told that the lower courts are applying a so-called "iterative approach" to disclosure, "whereby a bit of disclosure is given to a controlled person, the idea being that that may be enough for them to respond effectively and give effective instructions to their own lawyers and the special advocates, and if it turns out that it is not then to give a bit more."[68] The special advocates were concerned that this iterative approach to disclosure caused a practical problem of requiring disclosure issues to be constantly revisited in what was already a very protracted process, and that it was also possibly unfair in principle to require a controlled person to respond first to part of the case against him before disclosing more of what, after AF, he is entitled to know about that case.

52. The solicitors who represent those subject to control orders confirmed that the decision in AF had not resulted in practice in much if any more disclosure to their clients.[69] They acknowledged, however, that the decision had had a significant impact because it had led to the revocation of control orders in some cases where the Government was not prepared to make the further disclosure that the decision in AF would require.

53. By requiring, in effect, the disclosure to a controlled person of the gist of the allegations against him, the decision in AF has gone some way to addressing one of the main sources of unfairness of the control order regime. However, it appears that the impact of the decision on improving fairness in practice may have been limited by the Government's passive and minimalist approach to compliance, and the approach of some lower court judges of requiring only a little further disclosure at a time. We recommend that the Government conduct a more thoroughgoing and proactive review of the material on which it relies to sustain existing control orders with a view to deciding in each case whether more disclosure is required in the light of AF, rather than leave that task to the special advocates in ongoing proceedings.

CONTINUED LIMITATIONS ON SPECIAL ADVOCATES

54. 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, in particular:

    (1) the special advocates' lack of access to independent expertise and evidence

    (2) the special advocates' ability to test the Government's objections to disclosure of the closed case, and

    (3) the special advocates' ability to communicate with the affected person after seeing the closed material.

55. We have made recommendations in the past to address these limitations but, with only one exception, the Government has resisted our suggestions. According to a recent article by Martin Chamberlain, who has several years' experience of acting as a special advocate and gave evidence to us in 2007, all of these limitations on the special advocates' ability to provide a fair hearing remain firmly in place.[70]

(1) Lack of access to independent expertise and evidence

56. The only change to the legal framework governing special advocates which has been accepted by the Government was the amendment of the relevant procedure rules to enable special advocates to adduce their own evidence in control order proceedings. This rule change arose out of the evidence of the special advocates, both to us and the Constitutional Affairs Committee, explaining their concern about "a potentially serious inequality of arms in closed proceedings" due to the special advocates' lack of access to independent expertise, advice and evidence to deal with some of the closed material relied on by the Secretary of State.[71] "Inequality of arms" is a term of art in human rights law meaning simply unfairness as a result of one party to litigation being at a substantial disadvantage compared to the other party in the opportunity they have to present their case to the court. The lack of a meaningful opportunity to challenge the other side's evidence would be an example of such an inequality.

57. The relevant procedure rules were amended to enable special advocates to adduce evidence in closed proceedings.[72] We asked the special advocates whether this rule change had made any difference in practice to the special advocates' ability to ensure fairness. The answer was "a resounding no".[73] It appears that, notwithstanding the rule change to facilitate the adducing of evidence by special advocates, no special advocate in any case to date has ever been in a position to adduce evidence him or herself. The practical obstacles to special advocates having access to such independent expertise to equip them to challenge some of the expert evidence of the Secretary of State were explained to us by Andrew Nicol QC, a special advocate, in 2007.[74] He said that, to be of any use, such an expert would need to be somebody with relevant expertise and recent "inside knowledge", such as somebody who had recently retired from the Security Service or one of the intelligence services, but this was a very small pool of people and the more recent their experience the greater would be the doubt about whether they were sufficiently independent.

58. One of the special advocates who gave oral evidence to us, Angus McCullough, provided us with a copy of the Special Advocate's Note submitted to the House of Lords in a recent case to demonstrate the practical reality of this problem.[75] The Note explains to the House of Lords the "profound - and thus far insuperable - difficulties" which prevent the identification and instruction of a suitable expert by the special advocate and states that "the efforts by Special Advocates to gain access to such expert assistance have continued since the hearing before the JCHR, but with no material result."[76] The Special Advocate in that case therefore agreed with the open advocates that it was in practice "entirely fanciful" that the special advocate was able to instruct and call an expert to challenge the expert evidence relied on by the Secretary of State in the closed proceedings. Mr. McCullough told us in evidence that, as far as he was aware, it is still the case that no special advocate has ever been in a position to adduce expert or other evidence to challenge the evidence relied on by the Secretary of State.

59. Notwithstanding the rule change which permits special advocates to adduce evidence, it remains the case that special advocates continue to have no access in practice to evidence or expertise which would enable them to challenge the expert assessments of the Security Service, assessments to which the court is therefore almost bound to defer in the absence of any evidence or expert opinion to the contrary. The unfairness identified by the Constitutional Affairs Committee as long ago as 2005 therefore still persists: in practice, special advocates have no means of adducing any evidence which contradicts the evidence relied on by the Secretary of State in closed proceedings, which gives rise to a serious inequality of arms in those proceedings.

(2) Ability to test Government objections to disclosure of closed case

60. One of the special advocate's important functions in control order proceedings is to test the Government's objections to disclosure of the closed material, that is, the material on which the Government proposes to rely without disclosing it to the controlee or his legal representatives. The special advocates explained to us that in practice there are serious limitations on their ability to do this effectively.

61. The most effective way of challenging an objection to disclosure is to demonstrate that the material is already in the public domain, [77] for which the special advocate simply needs an internet search engine. The Security Service's objection to disclosure is usually withdrawn if it can be shown to be already in the public domain.[78] The other main way for special advocates to challenge the Government's objection to disclosure is by suggesting a "gist" of the allegation in question, by reducing the specific allegation to a more general one divorced from the factual detail which might imperil sources or techniques.[79] Although the decision of the House of Lords in AF has strengthened the hand of the special advocates when arguing for more disclosure, by upholding the right of the controlled person to know at least the essence of the case against them, the special advocates remain very limited in their ability to challenge the Government's objection to more disclosure.

62. The special advocates confirmed our observation in an earlier report that the Government adopts a "precautionary" approach to disclosure.[80] The Security Service was described as taking "an extraordinarily precautionary approach to what needs to be kept private in the interests of national security", and in one case a Security Service witness apparently agreed that the Service was "institutionally cautious."[81] Where an allegation is known only from a closed source, such as an intercept or an agent, the objection to disclosure is made not on an individual basis concerning the particular case but on a class basis: that is, that disclosure of an allegation from that kind of source will necessarily be damaging to the public interest.[82] The special advocates felt that more could be disclosed than the Government was prepared to permit,[83] but they are not really in a position to challenge such objections to disclosure, because they do not have access to any independent expert evidence. The special advocates have no means of gainsaying the Government's assessment that disclosure would cause harm to the public interest, and Government assessments about what can and cannot be disclosed are effectively unchallengeable and almost always upheld by the court.[84] Courts inevitably "accord great weight to views on matters of national security expressed by the agencies who are particularly charged with protecting national security."[85]

63. In addition to this de facto limitation on the ability of the special advocates to challenge the Government's objections to disclosure, their evidence to us identified another significant limitation in practice: the problem of late disclosure of closed material by the Secretary of State to the special advocates, which they described as "endemic."[86] We heard that in almost every case a very substantial volume of disclosure of closed material is sent to the special advocate very shortly before the start of a hearing and the special advocates share a serious concern that such late disclosure prevents them from performing the function that they are intended to perform. The special advocates did not suggest that such late disclosure of closed material is a deliberate tactic by the Government, but their evidence does suggest that there is a real lack of discipline about disclosing closed material to special advocates within the timetables for disclosure laid down by the Court. There is effectively no sanction since the court cannot refuse to consider material which relates to national security and the controlled person is unlikely to want an adjournment to the proceedings given his continued subjection to a control order.

64. One of the special advocates provided us with a Note from the Special Advocates in a recent case to illustrate what he described as "this widespread problem."[87] The Note sets out a detailed chronology of the Secretary of State's disregard of the Court's directions in relation to disclosure in that particular case, and states that the efficacy of the disclosure hearing has been "seriously compromised" as a result. The special advocates "record their profound concern that their ability to discharge their functions has been, and continues to be, compromised by the Secretary of State's serial failures to comply with the Court's directions."

65. The effect of late disclosure of the closed material to the special advocates is seriously to compromise their ability to discharge their important function, because it leaves them with insufficient time to scrutinise the closed material and to challenge the Government's reasons for the material being closed. As a result, "the disclosure process … one of the two most important jobs that a special advocate does … always goes out the window when you get late disclosure."[88] Although the problem is a practical one, arising from the way in which the system is operated in practice rather than anything designed into the rules, the special advocates agreed that it is very significant: it means there is a serious disjuncture between the role which the rules say the special advocate performs and the role which they are actually able to perform in practice, and "that is a difficult position for a lawyer to be in if you care about the rule of law."[89] By seriously hampering special advocates in their performance of the role they are intended to perform, it creates the risk of serious miscarriages of justice.

(3) Limits on ability to communicate with controlled person

66. In a number of previous reports we have drawn attention to the unfairness caused by the rule[90] prohibiting communication with the controlled person or his representative following receipt of the closed material.[91] We considered it essential, if special advocates are to be able to perform their function, to relax the absolute prohibition on communication and we recommended ways in which the rule could be relaxed consistently with protecting the interests of national security.[92] The special advocates confirmed the injustice caused by this rule and also recommended ways of amending the framework to allow some communication to take place, with the authority of the court but without having to disclose to the Secretary of State the reason for, or the fact of, the application. None of these recommendations has been accepted by the Government and the absolute prohibition on communication therefore remains, subject only to the exception that the court may grant permission for such communication but only where the application for that permission is notified to the Secretary of State.

67. Bearing in mind that the statutory function of the special advocate is to represent the interests of the controlled person in proceedings from which they and their legal representatives are excluded, this limitation on communication between special advocates and their clients, and requirement that the other side be notified of any application for permission to communicate, is a drastic departure from the usual features of the lawyer/client relationship. In all other contexts, unconstrained communication between lawyer and client is positively protected by legal professional privilege, which is legally recognised to be an important attribute of the fundamental right of access to court, both under the ECHR[93] and at common law.[94] Restrictions on that fundamental right of access to court are in principle capable of being justified, but, given the fundamental importance of the right, on which the vindication of other rights may effectively depend, there is a heavy onus to demonstrate the necessity and proportionality of such restrictions.

68. This issue remains a "profound concern" of the special advocates, who regard it as a significant constraint on their ability to discharge their role effectively in control order proceedings.[95] It was taken up by them with Lord Carlile during his most recent review of the operation of the control order system.[96] They held a meeting with him in October 2009 at which they raised a number of concerns, of which the prohibition on communication was the major one. In their subsequent written submission, invited by Lord Carlile, and which they have supplied to us, they explained the practical effect of the rule and argued that "the scope of the current prohibition is unjustifiably broad."[97] They pointed out that the permission of the court "is very rarely sought" because of the requirement that such applications must be made on notice to the Secretary of State. They made two specific proposals for a relaxation of the rule:

    (1) to allow communication on matters of pure legal strategy and procedural administration; and

    (2) to give special advocates power to apply to a High Court judge for permission to ask questions of the person whose interests they represent, without being required to give notice to the Secretary of State.

69. The special advocates' submission was signed by 23 special advocates, consisting of almost all of the current special advocates who are regularly appointed or have significant past experience in the role. It is therefore a concern which reflects "a reasonably collective view" amongst the special advocates.[98]

70. In Lord Carlile's report he refers to having received "anxious representations" from the special advocates about their role in control order cases, and he sets out in detail their concern about the prohibition on communication contained in the procedural rules, and their proposals for relaxing the rule.[99] He states that he is "broadly sympathetic" to their concerns, but after summarising the security concerns about modifying the system in the way they suggest (concerns about inadvertent leakage of sensitive material to controlees), he concludes that "improved training and closer co-operation should resolve the concerns recorded above. I doubt that any rule changes are necessary."[100]

71. The special advocates, in evidence to us, expressed themselves to be "bemused" by this conclusion.[101] In their view, as is apparent from the nature of their concern correctly recorded by Lord Carlile himself, "the problem is hardwired into the current rules, so we do find it hard to understand why Lord Carlile concludes by doubting that any rule changes are necessary." In the special advocates' view, rule changes are not only necessary but essential in order to address this problem, and they feel that they have made realistic suggestions as to ways in which the present rule could and should be relaxed.[102]

72. The inability of special advocates to communicate with the controlee after seeing the closed material, identified as a source of unfairness by the Constitutional Affairs Committee in 2005, remains unchanged, notwithstanding the clear evidence that it seriously affects the special advocates' ability to discharge their function of representing the controlee's interests in the closed proceedings. Lord Carlile's report fails to address the systemic nature of these concerns about the limitation on the special advocates' ability to perform their function: it is a limitation inherent in the current rules, not something which can be overcome by improved training or co-operation. So long as the rules remain unchanged, this 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 and therefore the extent to which they are capable of mitigating the unfairness to the controlled person in the closed proceedings.

73. Finally, the special advocates confirmed that the decision of the House of Lords in AF does not affect any of these systemic limitations on the special advocates' ability to ensure a substantial measure of procedural justice to the controlee.[103]

INTERNATIONAL COMPARISONS

74. We think it is important to correct a misperception, often encountered, that the UK system of special advocates is regarded internationally as a model of good practice to be followed. Lord Carlile, for example, observes that the use of special advocates "has been studied, with favourable comment, by other jurisdictions."[104] In fact, as far as we are aware, there is no other jurisdiction in the common law world which operates a comparable system of closed proceedings in which there are the same limitations on the functions of the special advocates.[105] It is correct to say that the UK system was of considerable interest to the Canadian Government when it was recently considering how to address the same issue of reconciling public safety and individual fairness. Significantly, however, the special advocate regime adopted in Canada after examining the UK system has not reproduced one of the principal limitations inherent in the UK system, the prohibition on communication with the controlled person other than with the permission of the court following an application made on notice to the Secretary of State.

75. As we pointed out in our 2007 report on special advocates, the Special Senate Committee of the Canadian Parliament on the Canadian Anti-Terrorism Act recommended (with reference to the recommendations of the Constitutional Affairs Committee) that special advocates should be able to communicate with the party affected by the proceedings and his counsel even after receiving closed material.[106] The Canadian system of special advocates appears to have learnt this lesson from the UK experience: the relevant statutory provision provides that, after receiving the closed material, the special advocate may communicate with another person about the proceeding only with the judge's authorization and subject to any conditions that the judge considers appropriate,[107] but there is no requirement to notify the Government about the proposed communication. Indeed, any communication between the special advocate and the person whose interests they represent is deemed to be subject to legal professional privilege if it is the sort of communication that would attract such privilege between lawyer and client.[108] As one of the special advocates told us in evidence:[109]

    … in Canada after the Canadians examined the British system and the British experience, … they have adopted a system which permits discussion between open representatives and special advocates on open matters, and have deployed a regime whereby the ex parte procedure may be used if there is a desire to communicate from the special advocates to the open advocates on anything that may impinge on closed material.

76. The special advocates' Note to Lord Carlile also records their understanding, gained from visiting Canadian special advocates, that in Canada extensive use is made of a procedure whereby special advocates apply to a judge for permission to ask questions of the person they represent, without being required to give notice to the Government.[110]

VIEWS OF INTERNATIONAL MONITORING BODIES

77. Parliament should also be aware of the impact of control orders on the UK's international reputation. In our renewal report last year we reminded Parliament of the views of various international monitoring bodies about the human rights compatibility of control orders.[111]

78. The Concluding Observations of the UN Human Rights Committee on the UK's compliance with the International Covenant on Civil and Political Rights, for example, included a recommendation that the Government should ensure that the judicial procedure for challenging the imposition of a control order complies with the principle of equality of arms, and also that those subjected to control orders are promptly charged with a criminal offence.[112]

79. The Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, published on 17 February 2009,[113] expressed concern that, over the longer term, control orders could give rise to a "parallel legal system" and undermine the rule of law. It concluded that, if control orders are to be used, it is essential to build in appropriate safeguards and that there are many important safeguards missing in the control order system, currently in operation in the UK:

  • the evidentiary standard required is … low - that of 'reasonable suspicion';
  • there is limited ability to test the underlying intelligence information;
  • there are no definite time-limits and the orders can last for long periods;
  • there are limitations on effective legal representation and to legal counsel of one's own choosing;
  • the right to a full fair hearing (guaranteed in both civil and criminal proceedings) is denied.

80. The Report points out that such safeguards are all the more important given that criminal sanctions often flow from the currently flawed procedures, and expresses the Panel's reservations about alternative safeguards such as the system of special advocates, which put the affected person at a grave disadvantage.

ASSESSMENT OF THE FAIRNESS OF THE SYSTEM

81. The Home Office's Memorandum to the Home Affairs Committee on the control orders legislation asserts that the control orders system complies fully with the requirements of human rights law. It points to "extensive internal and external (including judicial) safeguards to ensure that there is rigorous scrutiny of the control orders regime as a whole - and that the rights of each controlled person are properly safeguarded."[114] In one extraordinary passage it states that "various House of Lords judgments have confirmed the way in which the 2005 Act operates in a manner fully compliant with the ECHR"[115]: a reference to the House of Lords decisions in MB and AF in which the highest court effectively rewrote the statutory regime in order to make it compatible with the ECHR by subjecting the public interest in non-disclosure to the overriding right of the controlled person to a fair hearing.

82. As a result of the decision of the House of Lords in AF v Home Secretary, the relevant statutory provisions in the Prevention of Terrorism Act 2005, and procedural rules in Part 76 of the Civil Procedure Rules, now say one thing but mean another. They say, on their face, that there is an absolute requirement of non-disclosure of material the disclosure of which would be contrary to the public interest and that the overriding objective of the civil procedure rules, namely doing justice, is subject to the requirement not to disclose material contrary to the public interest. They mean, after AF, effectively the opposite: that the interests of justice trump the public interest in non-disclosure. The statute and the rules do not require the Secretary of State to provide a statement of the gist of any closed material on which fairness requires the controlled person have an opportunity to comment. After AF, that duty must be read into the legislation.

83. The Explanatory Memorandum accompanying the draft order acknowledges the gap between the wording of the statutory framework and the way in which it is now required to be interpreted as a result of judicial decisions reading words into the legislation in order to make it compatible. It says that that the High Court carries out an automatic review of the material to determine whether the Secretary of State's decision to make a control order is "flawed", but points out that "case law now requires a more rigorous review by the Court."[116] In one post-AF case, BM, Mitting J also highlighted the gap between the statutory framework and the approach which the courts are now required to take as a result of judicial interpretation of that framework:[117]

    "15. On the basis of the closed material, I would have decided that the decision was not flawed and would have upheld the modification, notwithstanding its significant and highly adverse impact upon BM's family, in particular upon his children.

    16. As will be apparent from my reasoning, the task which I have performed is not the statutory task set out in sub-section 10(5)(a) [Prevention of Terrorism Act 2005]:

'… to determine whether the following decision of the Secretary of State was flawed -

(a) in the case of an appeal against a modification, his decision that the modification is necessary …'

What I have decided is that the open material is not capable of supporting the decision. That is not the test which Parliament intended. Nor is it a satisfactory basis upon which to determine the rationality and proportionality of a decision properly made in the public interest by the Secretary of State. It is, however, the inevitable result of applying the principles clearly identified by the Appellate Committee in AF."

84. The Home Secretary, however, does not intend to bring forward any amendments to the relevant statutory provisions in the Prevention of Terrorism Act, or to the Civil Procedure Rules. His view is that it is unnecessary because "the 2005 Act now reads as amended by the House of Lords". Nor does the Government consider it necessary for Parliament to have an early opportunity to debate the appropriate response to the decisions of the House of Lords and the European Court of Human Rights.

85. Even allowing for a degree of advocacy in a Government document setting out the Government's own post-legislative assessment of one of its most important pieces of counter-terrorism legislation, we take a serious view of the mischaracterisation of the House of Lords judgments in MB and AF in the Home Office's Memorandum to the Home Affairs Committee. The law in this area is complex and technical and we regard it as positively misleading to say to parliamentarians, most of whom are not legally trained and do not have ready access to legal advice, that the House of Lords has "confirmed" the way in which the control orders regime operates in a manner fully compliant with the ECHR. That is not, on any view, a fair or accurate characterisation of the effect of the House of Lords judgments. The special advocates who gave evidence to us, with all their experience of interpreting and applying the case-law in their day to day practices, did not consider it to be a fair reading of the House of Lords decisions.[118]

86. It is important for parliamentarians to be in no doubt that the control orders legislation has not in fact been operated in practice in a way which is compatible with the ECHR. On the contrary, it has led to a number of judicial findings of breaches of human rights, including unlawful deprivations of liberty and breaches of the right to a fair hearing. It is also important to be clear that the legislation itself has only been saved from being declared to be incompatible with the European Convention on Human Rights by judicial rewriting of the legislation, that is, by judicial interpretations of the framework which the Government resisted in the litigation, and which are the same in substance as amendments to the framework, amendments which the Government also resisted in Parliament.

87. To shelter behind the fact that the Prevention of Terrorism Act 2005 has not been declared to be incompatible with the ECHR, and to imply that it is therefore operating in practice perfectly compatibly with human rights, is to conceal the reality that in practice the framework has led to a number of breaches of human rights and continues to give rise to daily argument about whether the orders made under it are compatible with the right to a fair procedure under Article 6 or the common law.

88. We also heard from the controlees' lawyers that, although there had been some significant court decisions about the control order regime, these had not made very much difference in practice to the position of the individuals under control orders, at least until the decision in AF. In an essay in the London Review of Books in April 2008, "Was it like this for the Irish?", Gareth Peirce commented that, since the House of Lords judgment in the Belmarsh case in December 2004, "it has become clear that the government intends to ignore the spirit if not the letter of the decision." Referring to this and the House of Lords subsequent decision concerning the admissibility of evidence derived from torture, she commented:

    Despite the strength and intended permanence of these two rulings by the House of Lords, however, many Muslims have come to see any protection from the courts as constituting only a temporary impediment before the government starts to implement a new method of avoidance.

89. In evidence she told of one individual who was detained for three and a half years under the Anti-Terrorism, Crime and Security Act 2001, won in the House of Lords in the challenge to that legislation, won again in the House of Lords establishing that evidence derived from torture could not be used in his case, won in the European Court of Human Rights on the basis that he had never had anything disclosed to him sufficient to provide due process, and won again in the House of Lords on the same basis, yet, despite all these legal victories, his control order remained in force on the same evidence. Such interminable back and forth, she candidly confessed, "breeds bleak cynicism … and … does nothing to reassure those who are affected that the law, or the lawyers, can help them at all."[119]

90. We have considered very carefully whether the control orders regime can be made to operate in a way which is compatible with the requirements of basic fairness which are inherent in both the common law and Article 6 ECHR. We emphasise that in previous reports we have always maintained an open mind about this possibility, even while we have expressed our serious reservations about whether the actual design of the regime made this a practical impossibility. Our assessment now, in the light of five years' experience of the operation of the system, is that the current regime is not capable of ensuring the substantial measure of procedural justice that is required. In short, it cannot be operated fairly without fundamental reforms which have so far been resisted.

TAKING THE SPECIAL ADVOCATES SERIOUSLY

91. In December 2007, at our suggestion, the Minister with responsibility for control orders, who was then Tony McNulty MP, met some of the special advocates to discuss their concerns. However, the meeting concentrated on "practical issues concerning the operation of the special advocate procedure and ensuring it worked as efficiently and effectively as possible, rather than the concerns of principle that you have previously raised with the Government and on which we continue to differ".[120] The main outcome of the meeting was that the Government agreed to consider whether it would be possible to expand the training course already available to special advocates to cover concerns the special advocates had about remaining gaps in their knowledge. We expressed our disappointment at the Minister's failure to discuss with the special advocates the issues of principle about the inherent unfairness of control order proceedings which the special advocates had raised in their evidence to us.[121] Subsequently, in May 2008 the Minister offered to meet representatives of the special advocates again to discuss some of the recommendations we had made about reforming the control order system and we wrote to him to encourage him to do so.[122] In our report we urged him to meet the special advocates to discuss our recommendations for reform of the system and to report to Parliament on the outcome of that meeting.[123]

92. In our last report on the renewal of the control orders regime, we noted that this meeting between the Minister and the special advocates to discuss our recommended amendments to the control orders framework which were designed to address their concerns did not appear to have taken place.[124] We asked the special advocates who gave evidence to us whether any minister had met the special advocates, or asked to meet them, to discuss their concerns about the process.[125] The special advocates recalled one meeting with the then Attorney General, Lord Goldsmith, which had taken place "some time ago", before the House of Lords decision in MB, and a meeting with a Home Office minister "some years ago", but there had been no meeting or request for a meeting "in recent times."

93. It is quite clear that there has been no attempt by the Government to meet the special advocates since December 2007, to discuss their fundamental concerns about the way in which the system of closed proceedings works in practice in the control order regime and other contexts, or to discuss our recommended amendments to the legal framework in light of the various court judgments. This has been despite our best efforts, through our reports, to facilitate such a meeting. We welcome the fact that, as we have described above, Lord Carlile did meet four of the special advocates and invite them to set out one of their principal concerns in writing when conducting his review of the viability of the control orders system after AF. However, for the reasons we have explained, Lord Carlile's report does not address the substance of the special advocates' concerns about the serious limitation on their ability to discharge their function.[126]

94. In the course of oral evidence we asked the special advocates whether there is any opportunity for special advocates on the one hand and representatives of the intelligence services on the other to discuss their different perspectives about how the competing demands of fairness and public safety can best be reconciled.[127] It is clear that there is no such opportunity in the day to day operation of the special advocate regime. Discussions about what material can and cannot be disclosed in a particular case take place between the special advocates and counsel instructed on behalf of the Government, and disagreements are then resolved by adversarial argument before the court.[128] There is no direct discussion between the special advocates and members of the relevant agencies concerned. Attempts by special advocates to raise points of general principle in individual cases, such as whether it is appropriate for the agencies to object to disclosure of a whole class of document or information, "have not got very far."[129]

95. In our view there would be considerable virtue in there being a forum, outside of the adversarial context of legal proceedings, in which experienced special advocates could meet with ministers and representatives of the security and intelligence services to discuss the difficult issues of principle which the day to day operation of the special advocates system has thrown up, and for ministers to report to Parliament, as transparently as possible, on those discussions. We agree with the observation made by one of the special advocates that the intelligence services must be included in these discussions.[130] In certain respects the special advocates regime has rendered the intelligence and security services more accountable by requiring the agencies to engage with the rigour of adversarial legal processes. We think it is important to acknowledge, to this extent, the net gain in the accountability of the otherwise largely unaccountable security and intelligence services. There is a limit, however, to the additional accountability that such adversarial processes alone can achieve before grinding to a halt in a legal stand-off over how to reconcile the competing demands of public safety and fairness to individuals suspected of threatening that safety.

96. We consider that limit to have been reached, manifested in the endless but largely fruitless litigation about how much disclosure fairness requires in particular cases. There is no obvious end point to such litigation: it could quite literally continue indefinitely, while some controlees continue to languish under control orders which are constantly modified in light of the most recent judgment but never removed. To move forward from here requires a more proactive approach to be taken by the Government to the problems which have proved so intractable to date. One aspect of a more proactive approach should be the creation of a space in which all those engaged in the operation of the special advocate regime can discuss, not the details of individual cases, but the issues of general principle which have arisen, with a view to finding new ways through the current sclerosis in the institutions which have been designed to secure both public safety and individual fairness. Our previous attempts to bring about a meeting between ministers and the special advocates have been with this purpose in mind. By the way in which they have sought to discharge their function and in their evidence to us, the special advocates have proved themselves to be a group of conscientious individuals with a profound professional commitment to the rule of law. It is high time the Government took their concerns seriously.

97. We are disappointed by the Government's failure to follow through on its earlier promise to us to arrange a meeting with the special advocates. We regard this failure as symptomatic of the Government's general passivity in the face of widespread concerns about the basic fairness of closed proceedings. We recommend that the Minister responsible meet representatives of the special advocates to discuss their concerns about the fairness of the special advocate system as it currently operates, and specifically to discuss the modifications to the legal framework which we and the special advocates have suggested. We recommend that representatives of the intelligence and security services also attend and participate at this meeting. We recommend that the meeting take place as a matter of urgency, and whatever the fate of the control order regime, as the special advocates' principled concerns are potentially of relevance to all of the growing number of contexts in which special advocates and closed evidence are deployed.

98. We look forward to receiving from the Minister a detailed account of what was discussed at this meeting and a fully reasoned Government response to the special advocates' concerns. We expect this to be a conscientious political engagement with the persistent demands for changes to the legal framework governing closed proceedings, and not merely a repetition of the legal arguments being made by the Government in the ongoing litigation about the role of special advocates in control order and other proceedings involving closed material.

The cost of control orders

99. Control orders have been the most litigated of the Government's counter-terrorism measures since 2001, and quite probably the most litigated ever. Since they came into force in 2005 there have been two House of Lords judgments, several Court of Appeal judgments and innumerable High Court judgments concerning both the compatibility of the legal framework with human rights and the lawfulness of individual control orders. So numerous have been the interlocutory hearings in the High Court, concerning disclosure and directions, that it appears no record is kept. There is no sign of the litigation abating. As indicated above, since the decision of the House of Lords in AF in June there have already been a number of High Court judgments grappling with the implications of the House of Lords decision, and a number of cases are already on their way to the Court of Appeal and, quite possibly, back to the Supreme Court again.

100. The cost of control order litigation to the public purse is unusually high. Every control order triggers an automatic judicial review, which is as it should be in view of the seriousness of the interference with fundamental rights caused by what is essentially an executive order, but it means that every order carries a high price tag. Because of the use of closed material, a large number of special advocates are retained (they numbered 50 at the latest count), complete with their own secretariat, the Special Advocate Support Office. The controlled person's legal representatives are also publicly funded through legal aid. Every hearing concerning a control order therefore requires the presence of several lawyers, all at public expense: solicitors and barristers representing the Secretary of State, solicitors and barristers representing the controlled person, and solicitors from the Special Advocate Support Office and special advocate barristers representing the interests of the controlled person in the closed part of the proceedings from which the controlled person and their legal representatives are excluded. The number of preparatory hearings involved in control order litigation is high because of the extensive arguments over what can and cannot be disclosed to the controlled person and their legal representatives.

101. As questions have grown about the effectiveness of control orders, and as the permissible stringency of the restrictions they imposed has been progressively cut back in litigation, so we and others have had a growing sense that the financial cost of control orders may have become disproportionate to any benefit which can plausibly be claimed for them. We have therefore sought to obtain some detailed information about the costs of control orders to the public purse so that Parliament can be properly informed on this score when it comes to consider whether renewal of this unusually expensive counter-terrorism measure is justified.[131]

102. The detailed figures can be found in the correspondence,[132] but to date we have ascertained that approximately £13 million was spent on control orders between 2006 and 2009. The £13 million figure breaks down approximately as follows:

    £8.1 million - legal costs

    £2.7 million - administrative costs

    £2 million - cost to Legal Services Commission of publicly funded representation

103. This is likely to be a conservative estimate as it does not include any figure for the cost of court hearings, an estimate of which is being prepared by Her Majesty's Court Service, nor does it reflect the actual cost of legal representation of controlled persons, for which the Legal Services Commission is not invoiced until the case is closed. [133]

104. The Government accepts that this is "a significant sum of money".[134] However, it states that, given its assessment that the control order regime remains a necessary and proportionate tool to protect the public from a risk of terrorism, it continues to devote the necessary resources to upholding the regime.

105. It is clear that control orders are an extremely expensive measure. Moreover, 80% of the costs of control orders are accounted for by legal costs. As Lord West candidly admitted in the House of Lords recently after being questioned about some of the legal aspects of control orders by three former Law Lords, "I now understand why 80% of the cost involved in control orders is legal costs. It is due to the complexity."[135] We have asked the Minister,[136] and our Chair recently asked the Prime Minister at Liaison Committee,[137] whether it is really justifiable to spend so much money on expensive lawyers rather than spend it directly on front-line counter-terrorism measures such as surveillance officers, and whether the latter would in fact be more effective in any event. The Government's answer, supported by Lord Carlile, is a double assertion: that control orders remain necessary to protect national security (the implication being that so long as this is the case they must be maintained whatever the cost) and that surveillance "would be considerably more expensive".[138] An attempt by our Chair to obtain a ball-park figure of the cost per day of 24 hour surveillance has elicited no more information: the Home Secretary's written answer is that the Government do not comment on the details of terrorism-related operational matters.[139]

106. The detailed information which is now available about the cost of control orders, and in particular the significant amount of public money being spent on litigating them, raises a serious question about whether the cost of maintaining the system of control orders is out of all proportion to the public benefit which they are said to serve. The Government's response of asserting that their benefits, by disrupting terrorism, outweigh the costs, and that alternatives such as surveillance would be more expensive, is not satisfactory.

107. On the information currently available, 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 annually to lawyers in the ongoing litigation about control orders. We recommend that more detailed and independently verified information about the costs of surveillance be provided to Parliament in advance of the renewal debates to enable parliamentarians to reach a better informed view on this important question.

Conclusion

108. Since the decision of the House of Lords in AF there has been much speculation about whether the system of control orders is sustainable.[140] In AF Lord Hoffmann, who thought that the Grand Chamber had got it wrong in A v UK but reluctantly agreed that it should nevertheless be followed, warned that the House of Lords decision "may well destroy the system of control orders which is a significant part of this country's defences against terrorism."[141] Lord Hope, apparently with greater equanimity, also observed that the result of the decision may be that "the system is unsustainable."[142] Martin Chamberlain has written "on the limited evidence available so far, it appears that Lord Hoffmann's predictions of the demise of the control order system may not have been misplaced."[143] As pointed out above, the judgment itself does not hold the control orders regime itself to be incompatible with the ECHR. However, now that there has been time to consider that question in each case, it should be possible to assess whether the system is sustainable.

109. The whole point of requiring annual renewal by an affirmative resolution of both Houses is to provide an opportunity for post-legislative scrutiny of how the legislation is operating in practice. 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.

110. Since the introduction of the control orders regime in March 2005, on all previous annual renewals, we have expressed our very serious reservations about renewal unless the Government was prepared to make the changes to the system we have identified as necessary to render it human rights compatible. We warned that without those changes, the use of control orders would continue to give rise to unnecessary breaches of individuals' rights to liberty and due process. Our warnings have been echoed by other international bodies charged with monitoring compliance with human rights.

111. The many warnings have not been heeded. As a result, the continued operation of the unreformed system has, as we feared, led to more unfairness in practice, more unjustifiable interferences with people's liberty, more harm to people's mental health and to the lives of their families, even longer periods under indefinite restrictions for some individuals, more resentment in the communities affected by or in fear of control orders, more protracted litigation to which there is no end in sight, more claims for compensation, ever-mounting costs to the public purse, and untold damage to the UK's international reputation as a nation which prizes the value of fairness.

112. For a combination of these reasons, together with serious reservations about the practical value of control orders in disrupting terrorism compared to other means of achieving the same end, we have reached the clear view that the system of control orders 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.


1   The renewal order is made under s. 13(2)(c) of the Prevention of Terrorism Act 2005 which empowers the Secretary of State, by order made by statutory instrument, to provide that sections 1 to 9 of that Act are not to expire but are to continue in force for a period up to a year.Section 13(4) of the Act requires the order to be laid in draft for approval by resolution of each House of Parliament. Back

2   EM para. 2.1. Back

3   EM para. 6.1. Back

4   The PTA 2005 received Royal Assent on 11 March 2005.Sections 1 to 9 were previously renewed by SI 2006/512, SI 2007/706, SI 2008/559 and SI 2009/554. Back

5   Ninth Report of 2004-05, Prevention of Terrorism Bill: Preliminary Report, HL Paper 61, HC 389 and Tenth Report of 2004-05, Prevention of Terrorism Bill, HL Paper 68, HC 334. Back

6   Twelfth Report of Session 2005-06, Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006, HL Paper 122, HC 915 (hereafter "JCHR's First Report on Control Order Renewal"); Eighth Report of Session 2006-07, Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2007, HL Paper 60, HC 365 (hereafter "JCHR's Second Report on Control Order Renewal"); Tenth Report of Session 2007-08, Counter-Terrorism Policy and Human Rights (Ninth Report): Annual Renewal of Control Orders Legislation 2008, HL Paper 57, HC 356 (hereafter "JCHR's Third Report on Control Order Renewal"); Fifth Report of Session 2008-09, Counter-Terrorism Policy and Human Rights (Fourteenth Report): Annual Renewal of Control Order Legislation 2009, HL Paper 37, HC 282 (hereafter "JCHR's Fourth Report on Control Order Renewal") Back

7   Ninth Report of Session 2007-08, Counter-Terrorism Policy and Human Rights (Eighth Report): The Counter Terrorism Bill, paras 39-73; Twentieth Report of Session 2007-08, Counter-Terrorism Policy and Human Rights (Tenth Report): The Counter Terrorism Bill, paras 67-114; Thirtieth Report of Session 2007-08, Counter-Terrorism Policy and Human Rights (Thirteenth Report): The Counter Terrorism Bill, paras 128-132. Back

8   HL Deb, 21 October 2008, cols 1048-1105; HL Deb, 11 November 2008, cols 576-603. Back

9   See Fourth Report on Control Order Renewal, above, at para. 9 for a summary of the human rights concerns that we have consistently raised. Back

10   Uncorrected transcript available at: http://www.publications.parliament.uk/pa/jtselect/jtrights/uc111-i/11102.htm Back

11   Ev 6. Back

12   Ev 1. Back

13   See e.g. Third Report on Control Order Renewal, above n. 6, paras 19-34; Second Report on Control Order Renewal, above n.6, paras 12-17; First Report on Control Order Renewal, above n. 6, paras 13-14. Back

14   EM para. 8.1. Back

15   See chapter 6 of the Report of the Joint Committee on Conventions, 2005-06 HL 265/HC 1212, at paras 227-230. Back

16   A and others v UK, Application No. 3455/05 [GC], judgment of 19 February 2009, at paras 193-224. Back

17   Fifth Report of Session 2008-09, Counter-Terrorism Policy and Human Rights (Fourteenth Report): Annual Renewal of Control Orders 2009, HL Paper 37/HC 282 at paras 11 and 23-28. Back

18   A v UK, above, n.16, at paras 218-220. Back

19   Fifth Control Order Renewal Report (2009) at para. 27. Back

20   Government Reply to the Report by the Joint Committee on Human Rights on the Annual Renewal of Control Order Legislation 2009, Cm 7625 (May 2009), p. 1. Back

21   Secretary of State for the Home Department v AF and others [2009] UKHL 28, [2009] 3 WLR 74. Back

22   Ibid. at para [59]. Back

23   Written evidence, p 43. Back

24   Evidence of Helen Mountfield, Q34. Back

25   Written evidence, p 45. Back

26   HC Deb 16 September 2009 col. 152WS. Back

27   Secretary of State for the Home Department v AN [2009] EWHC 1966 (Admin). Back

28   See R (on the application of the Secretary of State of the Home Department) v BC and BB [2009] EWHC 2927 (Admin) (11 November 2009). Back

29   HC Deb 15 December 2009 col. 108WS. Back

30   Secretary of State for the Home Department v AF and AE [2010] EWHC 42 (Admin). Back

31   Memorandum to the Home Affairs Committee: Post-Legislative Assessment of the Prevention of Terrorism Act 2005, Cm 7797 (1 February 2010). Back

32   Fifth Report of the Independent Reviewer Pursuant to section 14(3) of the Prevention of Terrorism Act 2005, Lord Carlile of Berriew QC (1 February 2010). Back

33   EM para. 7.10. Back

34   EM para. 7.1. Back

35   Home Office Memorandum at para. 44. Back

36   Ibid at para. 55. Back

37   Ibid at para. 72. Back

38   Ibid at para. 85. Back

39   Carlile Report, paras 1, 96-97. Back

40   Ibid at para. 101. Back

41   Ibid at para. 85. Back

42   Ibid at para. 3. Back

43   Ibid at para. 125. Back

44   Ibid at para. 129. Back

45   Ibid at para. 162. Back

46   Ibid at para. 130. Back

47   Ibid at para. 140. Back

48   Ibid at para. 114. Back

49   Ibid at para. 2 and paras 87-89 Back

50   See e.g. First Control Order Renewal Report (2006), above n. 6, at paras 79-86. Back

51   All control orders to date have been made against men and we therefore refer to controlees as "he" throughout this Report. Back

52   First Control Order Renewal Report (2006) at para. 79. Back

53   Carlile Report at paras 119-20. Back

54   Q1 Back

55   Evidence of Gareth Peirce, Q2. Back

56   HC Deb 10 Feb 2010 col 1053-4W.Of the 45 individuals who have ever been subject to control orders, 17 have been required to relocate. Back

57   Evidence of Gareth Peirce, Q5. Back

58   Evidence of Sean McLoughlin, Q8. Back

59   Gareth Peirce, Q15. Back

60   Fourth Annual Renewal Report, 2009, above, at paras 29-33. Back

61   Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (3 August 2009), A/64/211 at para. 30. Back

62   Protocol No. 4 to the ECHR (Article 2 of which protects freedom of movement). Back

63   In addition to our report on the Prevention of Terrorism Act 2005 when it was introduced, and our annual reports on the renewal of control orders (see above), we have twice reported in detail on the control orders regime after hearing evidence from special advocates: see Nineteenth Report of Session 2006-07, Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, HL 157/HC 790 at paras 183-212 and Ninth Report of Session 2007-08, Counter-Terrorism Policy and Human Rights (Eighth Report): Counter-Terrorism Bill, HL 50/HC199 at paras 39-73. Back

64   Evidence of Helen Mountfield, Q 35. Back

65   Evidence of Angus McCullough, Helen Mountfield and Thomas de la Mare, Q 34. Back

66   Evidence of Helen Mountfield, Q35. Back

67   Qs 37-8. Back

68   Evidence of Angus McCullough, Q44. Back

69   Qs 30-31. Back

70   M. Chamberlain, "Special Advocates and Procedural Fairness in Closed Proceedings" (2009) Civil Justice Quarterly 314. Back

71   CAC, Seventh Report of Session 2004-05, The operation of the Special Immigration Appeals Commission (SIAC) and the use of special advocates, HC 323-I; JCHR, Nineteenth Report of 2006-07, Ev 19, Q78. Back

72   There was no equivalent provision in the CPR (governing control order proceedings in the High Court) to r. 44(5A) of theSIAC (Procedure) Rules 2003, permitting the special advocates to adduce evidence.See also the addition of "adducing evidence" into the list of the functions of a special advocate in r. 35 of the SIAC rules. Back

73   Evidence of Angus McCullough, Q45. Back

74   Evidence of Andrew Nicol QC, Nineteenth Report of Session 2006-07, Counter-Terrorism Policy and Human Rights: 28 days, intercept and post-charge questioning, HL 157/HC 790, Ev 19-20, Q78. Back

75   Written evidence, p 75. Back

76   Ibid at para. 8. Back

77   Evidence of Thomas de la Mare, Q46. Back

78   M. Chamberlain, above n.70, at 320. Back

79   Evidence of Thomas de la Mare, Q46. Back

80   Nineteenth Report of 2006-07, above n.63,, at para. 196. Back

81   Evidence of Helen Mountfield, Q54. Back

82   Evidence of Helen Mountfield, Q46. Back

83   Evidence of Thomas de la Mare and Helen Mountfield, Q46. Back

84   M. Chamberlain, above n.70 at 320. Back

85   Evidence of Angus McCullough, Q54. Back

86   Evidence of Helen Mountfield, Q96; evidence of Angus McCullough, Q101. Back

87   Evidence of Angus McCullough, Q101; Special Advocates' Open Note in Secretary of State for the Home Department v AN PTA/42/2009, written evidence, p . Back

88   Evidence of Thomas de la Mare, Q99. Back

89   Evidence of Helen Mountfield, Q99 and 104. Back

90   Civil Procedure Rules r. 76.25(2) and r. 36(2) of the SIAC (Procedure) Rules 2003. Back

91   See e.g. Nineteenth Report of 2006-07, above n.63, at paras 200-205; Ninth Report of 2007-08, above n. x at paras 67-69. Back

92   Nineteenth Report of 2006-07, above n. x, at para. 205. Back

93   Campbell and Fell v UK (1985) 7 EHRR 165 at paras 111-113. Back

94   R v Secretary of State for the Home Department, ex p. Daly [2001] 2 AC 532. Back

95   Evidence of Angus McCullough, Q47. Back

96   Special Advocates' Submission to Lord Carlile, 3 December 2009 , written evidence, p 96. Back

97   Ibid, para. 5. Back

98   Evidence of Angus McCullough, Q47. Back

99   Carlile Report, paras 130-139. Back

100   Ibid., para. 140. Back

101   Evidence of Angus McCullough (Q48), who was one of the special advocates who met personally with Lord Carlile and co-ordinated the input of the special advocates into the written submission signed by 23 of them. Back

102   Qs 48-49. Back

103   Evidence of Thomas de la Mare, Q52. Back

104   Carlile Report, para. 130. Back

105   Secret Evidence, JUSTICE, June 2009, paras 360-366. Back

106   Nineteenth Report of 2006-07, above n.63, at para. 201. Back

107   Section 85.4(2) of the Immigration and Refugee Protection Act 2001, as amended in February 2008 following the decision of the Supreme Court of Canada in Charkaoui v Canada (Citizenship and Immigration) [2007] 1 SCR 350 that the use of closed proceedings and secret evidence in immigration cases concerning national security, without any legal representation for the immigrant in the closed proceedings, was in breach of the principles of fundamental justice under section 7 of the Charter. Back

108   Section 85.1(4) of the Immigration and Refugee Protection Act 2001. Back

109   Evidence of Angus McCullough, Q50. Back

110   Special Advocates' Submission to Lord Carlile, above, para. 12(ii), written evidence, p 96. Back

111   Fifith Control Order Renewal report, above n. 6, paras 10 and 13. Back

112   UN Human Rights Committee Concluding Observations on the UK at para. 17. Back

113   Assessing Damage, Urging Action, Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and human Rights, 17 February 2009 (International Commission of Jurists), at 120-121. Back

114   Ibid. at para. 59. Back

115   Ibid at para. 61. Back

116   EM para. 7.7. Back

117   BM v Secretary of State for the Home Department [2009] EWHC 1572 Admin. Back

118   Evidence of Thomas de la Mare and Angus McCullough, Qs 62-63 Back

119   Evidence of Gareth Peirce, Q5. Back

120   Letter from Tony McNulty MP, 14 December 2007, Appendix 7 in Ninth Report of Session 2007-08, Counter-Terrorism Policy and Human Rights (Eighth Report): Counter-Terrorism Bill, HL 50/HC199. Back

121   Ibid. at para. 51. Back

122   Letter to Tony McNulty, 16 May 2008, Appendix 1 in Twenty First Report of Session 2007-08, Counter-Terrorism Policy and Human Rights (Eleventh Report): 42 Days and Public Emergencies, HL 116/HC 635. Back

123   Ibid at para. 58. Back

124   2009 Renewal Report at para. 25. Back

125   Q94. Back

126   Above, paras 34-38. Back

127   Qs 55-57. Back

128   Evidence of Angus McCullough, Q55. Back

129   Evidence of Helen Mountfield, Q55. Back

130   Evidence of Thomas de la Mare, Q56: "The relevant interlocutors are the intelligence services, and the intelligence services in my experience have a view, and it is not a view from which they are easily moved and not necessarily one they are interested in debating." Back

131   Second Report of Session 2009-10, Work of the Committee in 2008-09, Ev 141; Letter to David Hanson, 17 December 2009, written evidence, p 50. Back

132   Second Report of Session 2009-10, above n.131, Ev 141-143; Home Office Memorandum, paras 83-85; Letter from David Hanson, 6 February 2010, written evidence p 55-57. Back

133   Above, written evidence, p 55-7. Back

134   Home Office Memorandum, at para. 84. Back

135   HL Deb 3 February 2010 col. 196. Back

136   Evidence of David Hanson, 1 December 2009, Qs 75-80. Back

137   2 February 2010, Qs 73-74. Back

138   Home Office Memorandum at para. 85; Carlile Report, para. 81. Back

139   HC Deb 9 Feb 2010 col 908W. Back

140   See e.g. Henry Porter, "Control orders: a dying regime", The Guardian, 24 September 2009; Andy Worthington, "The end of secret evidence?", The Guardian, 2 December 2009. Back

141   [2009] UKHL 28 at [70]. Back

142   Ibid. at [87]. Back

143   M. Chamberlain, "Update on procedural fairness in closed proceedings" (2009) Civil Justice Quarterly 448. Back


 
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