Thursday, 6 January 2011

Control Orders

The Prevention of Terrorism Act 2005 (PTA 2005) created "control orders."  Parliament decided that the exceptional power to make such orders had to be renewed each year and, unless renewed, they will expire on 11th March 2011.  On 2nd January, The Guardian reported that Human Rights Groups across the world were condemning the U.K. for using these orders - see "Britain's anti-terror control orders condemned as trademarks of despots."   Theresa May, the Home Secretary, is thought to favour retention of control orders and that is certainly the view of Lord Carlile of Berriew QC who has been the independent reviewer of the operation of this legislation.  The Police, Security Services and a number of former Home Secretaries are in agreement.  Prior to the 2010 General Election, the Liberal Democrats had stated their opposition to retaining control orders.

Mr Justice Silber addressed the Bar Council conference on 6th November 2010  and his short speech
highlighted some of the difficulties existing in the control order regime.  The UK Human Rights Blog took a look at control orders on 6th January 2011.  Their article demonstrates how the judiciary has been able to modify certain aspects of control orders and how conditions imposed on particular "controlees" have been altered by the High Court.

In relation to control orders, much of the evidence is obtained clandestinely and there is reluctance or refusal on the part of the authorities to make the evidence public.  The general public is therefore expected to place a  lot of faith in Ministers and others who assert that such orders continue to be necessary.  Nevertheless, one could not sensibly argue that there was no terrorist threat within the U.K. or that such a threat was minimal.

The control order regime in the PTA 2005 replaced the earlier detention (without trial) regime in the Anti-terrorism, Crime and Security Act 2001 which was hastily enacted in the wake of terrorist attacks in the USA - 9/11.   That regime was condemned by the House of Lords in the Belmarsh case.  Control orders are a more palatable response than the detention system.   It is also important to note that the U.K. has put in place mechanisms to try to make the control order system fairer than it would otherwise be - e.g. supervision by the court under PTA 2005 s.3 and see the speech of Silber J (link above).

An interesting text on “Terrorism and human rights” is Richard Stone’s “Textbook on Civil Liberties and Human Rights” (OUP). Stone points out (6th ed. Ch.6) that “trading” (or “balancing”) between security and freedom is not really the right approach. The question which should be asked is, given the nature of the threats, what are the minimum steps which are necessary to respond to them.

Is it likely that the government will abandon control orders at this time?  That must be seriously doubted and, despite the condemnation referred to and perhaps some internal dissent within the coalition, a renewal for a further year seems to be likely.  This would enable the MacDonald review of terrorism powers to report and perhaps for the government to bring forward any necessary legislation to replace control orders with some alternative.  The Home Secretary is to make a statement to Parliament during the week beginning Monday 11th January.

Further material:

Jack of Kent Blog - "Ten years of the War on Terror."
Home Office - Rapid Review of Terrorism powers announced - July 2010 - [this has yet to report]
Lord Carlile of Berriew QC - Report of July 2010 covering 2009
UK Human Rights Blog - Angus McCullough QC - Joint Committee on Human Rights calls for control order scheme to be discontinued - March 2010
Malcolm Rifkind - on the work of the Intelligence and Security Committee - discusses (inter alia) problems with evidence.

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