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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