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


Conclusions and recommendations


Parliamentary scrutiny

1.  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. (Paragraph 10)

2.  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. (Paragraph 13)

3.  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. (Paragraph 14)

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

4.  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, 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. These concerns grow more acute the longer a control order against the same individual subsists. (Paragraph 44)

5.  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." (Paragraph 45)

6.  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, 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. (Paragraph 46)

Basic fairness of control orders

7.  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. (Paragraph 53)

8.  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. (Paragraph 59)

9.  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. (Paragraph 62)

10.  Courts inevitably "accord great weight to views on matters of national security expressed by the agencies who are particularly charged with protecting national security." (Paragraph 62)

11.  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. (Paragraph 65)

12.  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. (Paragraph 65)

13.  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. (Paragraph 72)

14.  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. (Paragraph 83)

15.  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. (Paragraph 88)

16.  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. (Paragraph 95)

17.  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. (Paragraph 96)

The cost of control orders

18.  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. (Paragraph 104)

19.  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. (Paragraph 105)

20.  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. (Paragraph 108)

21.  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. (Paragraph 109)

Conclusion

22.  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. (Paragraph 110)


 
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