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Counter–Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010

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Counter–Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010 House of Lords House of Commons Joint Committee on Human Rights Counter–Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010 Ninth Report of Session 2009–10 Report, together with formal minutes, and oral and written evidence Ordered by The House of Commons to be printed 23 February 2010 Ordered by The House of Lords to be printed 23 February 2010 HL Paper 64 HC 395 Published on Friday 26 February 2010 by authority of the House of Commons London: The Stationery Office Limited £0.00 Joint Committee on Human Rights The Joint Committee on Human Rights is appointed by the House of Lords and the House of Commons to consider matters relating to human rights in the United Kingdom (but excluding consideration of individual cases); proposals for remedial orders made under Section 10 of and laid under Schedule 2 to the Human Rights Act 1998; and in respect of draft remedial orders and remedial orders, whether the special attention of the House should be drawn to them on any of the grounds specified in Standing Order No. 73 (Lords)/151 (Commons) (Statutory Instruments (Joint Committee)). The Joint Committee has a maximum of six Members appointed by each House, of whom the quorum for any formal proceedings is three from each House. Current membership HOUSE OF LORDS HOUSE OF COMMONS Lord Bowness Mr Andrew Dismore MP (Labour, Hendon) (Chairman) Lord Dubs Dr Evan Harris MP (Liberal Democrat, Oxford West & Baroness Falkner of Margravine Abingdon) Lord Morris of Handsworth OJ Ms Fiona MacTaggart (Labour, Slough) The Earl of Onslow Mr Virendra Sharma MP (Labour, Ealing, Southall) Baroness Prashar Mr Richard Shepherd MP (Conservative, Aldridge-Brownhills) Mr Edward Timpson MP (Conservative, Crewe & Nantwich) Powers The Committee has the power to require the submission of written evidence and documents, to examine witnesses, to meet at any time (except when Parliament is prorogued or dissolved), to adjourn from place to place, to appoint specialist advisers, and to make Reports to both Houses. The Lords Committee has power to agree with the Commons in the appointment of a Chairman. Publications The Reports and evidence of the Joint Committee are published by The Stationery Office by Order of the two Houses. All publications of the Committee (including press notices) are on the internet at www.parliament.uk/commons/selcom/hrhome.htm. Current Staff The current staff of the Committee are: Mark Egan (Commons Clerk), Chloe Mawson (Lords Clerk), Murray Hunt (Legal Adviser), Angela Patrick and Joanne Sawyer (Assistant Legal Advisers), James Clarke (Senior Committee Assistant), John Porter (Committee Assistant), Joanna Griffin (Lords Committee Assistant) and Keith Pryke (Office Support Assistant). Contacts All correspondence should be addressed to The Clerk of the Joint Committee on Human Rights, Committee Office, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general inquiries is: 020 7219 2467; the Committee’s e-mail address is [email protected] Counter Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010 1 Contents Report Page Summary 3 Annual Renewal of Control Orders Legislation 2010 5 Introduction 5 Parliamentary scrutiny 6 Events since the last annual renewal 8 The Government’s case for renewal 11 The Explanatory Memorandum 12 The Home Office Memorandum 12 The Carlile Report 13 The impact of control orders on controlees, their families and communities 14 Basic fairness of control orders 16 Disclosure of the essence of the case against 17 Continued Limitations on Special Advocates 18 International comparisons 24 Views of international monitoring bodies 25 Assessment of the fairness of the system 26 Taking the special advocates seriously 29 The cost of control orders 31 Conclusion 33 Conclusions and recommendations 35 Formal Minutes 39 Witnesses 40 List of Written Evidence 40 Written Evidence 41 List of Reports from the Committee during the current Parliament 67 Counter Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010 2 Counter Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010 3 Summary On 1 February 2010 the Home Secretary laid before both Houses the draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2010. This provides for the continuation of the control order regime from 11 March 2010 until 10 March 2011. This is the fifth renewal order extending the life of the control order regime. Parliament’s opportunities to thoroughly scrutinise these powers are limited. First, parliamentarians have not been supplied with all the information they need. We call on the Government to make public at least a summary of the responses of the consultees whose views are sought by the Secretary of State before the annual renewal order is laid. Secondly, the affirmative resolution procedure limits detailed scrutiny. We recommend that extraordinary counter-terrorism powers, such as control orders, should be made subject to a proper sunset clause, requiring them to be renewed by primary legislation. Thirdly, we are concerned about the Government’s post-legislative assessment of the Prevention of Terrorism Act 2005. We believe that it has mischaracterised the important judgments of MB and AF by suggesting that the House of Lords has “confirmed” that the control orders regime operates in a manner fully compliant with the ECHR. That is not a fair or accurate characterisation of the effect of the House of Lords judgments. We have serious concerns about the control order system. Evidence shows the devastating impact of control orders on the subject of the orders, their families and their communities. In addition detailed information is now available about the cost of control orders which raises questions about whether the cost the system is out of all proportion to the supposed public benefit. We find it hard to believe that the annual cost of surveillance of the small number of individuals subject to control orders would exceed the amount currently being paid to lawyers in the ongoing litigation about control orders. Finally, we believe that because the Government has ignored our previous recommendations for reform, the system gives rise to unnecessary breaches of individuals’ rights to liberty and due process. We have previously recommended that the gist of the allegations against a controlled person should be disclosed to that person. The Government resisted this. The decision in AF requires separate consideration be given in each case to whether a sufficient gist of the allegations and evidence has been given to the controlled person in the open part of the proceedings to enable them to give effective instructions to their special advocate. Although the Government had said that it would be reviewing the material in each control order in the light of AF, in practice the Secretary of State has taken a “minimalist” approach to the decision. We recommend a more thoroughgoing and proactive review of the material on which the Government relies to sustain existing control orders with a view to deciding in each case whether more disclosure is required. We have previously heard evidence from the special advocates about the limitations on their ability to perform their function of providing controlees with the “substantial measure of procedural justice” required by Article 6 ECHR. Notwithstanding the rule change which permits special advocates to adduce evidence, it remains the case that they continue to have no access in practice to evidence or expertise which would enable them to challenge the expert assessments of the Security Services. This gives rise to a serious inequality of arms. In addition there is a significant problem of late disclosure of closed Counter Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010 4 material by the Secretary of State to the special advocates. This leaves the special advocates with insufficient time to scrutinise the closed material and to challenge the Government’s reasons for the material being closed. This creates the risk of serious miscarriages of justice. In previous reports we have drawn attention to the unfairness caused by the rule prohibiting communication between special advocates and the controlled person or his representative following receipt of the closed material. We believe that so long as the rules remain unchanged, the inability of special advocates to take instructions on the closed case seriously limits the extent to which they are able to represent the interests of the controlled person. We conclude that the special advocate system has not proved capable of ensuring the substantial measure of procedural justice required. In short, it cannot be operated fairly without fundamental reforms which the Government has so far resisted. Our conclusion is that the current control order regime is no longer sustainable. A heavy onus rests on the Government to explain to Parliament why alternatives, such as intensive surveillance of the very small number of suspects currently subject to a control order, and more vigorous pursuit of the possibility of prosecution, are not now to be preferred. Counter Terrorism Policy and Human Rights (Sixteenth Report): Annual Renewal of Control Orders Legislation 2010 5 Annual Renewal of Control Orders Legislation 2010 Introduction 1. On 1 February 2010 the Home Secretary laid
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