UK’s control order regime in jeopardy?
A Times report from earlier this month states that ‘Britain’s most dangerous terrorist suspects are likely to be released from detention to avoid the disclosure of secret intelligence evidence’. Relatedly, the BBC reports that the Home Secretary, Alan Johnson, has requested that the government’s independent reviewer of terrorism legislation, Lord Carlile, review the regime of detention - control orders under the Prevention of Terrorism Act 2005 (PTA) – and consider whether it remains viable.
The issue the UK has faced in recent years is what to do with terrorist suspects who cannot be deported (because of the Chahal decision of the European Court of Human Rights), and who the government is unwilling to try in ordinary court for reasons such as sufficiency of evidence and ensuring the secrecy of intelligence gathering. One approach was to create a scheme of non-criminal detention for terrorist suspects. Part IV of the Anti-terrorism Crime and Security Act 2001 permitted the Home Secretary to certain certain non-citizens to be suspected international terrorists and to detain them indefinitely. In December of 2004, the House of Lords declared this to be incompatible with the European Convention on Human Rights (ECHR) in the much-lauded Belmarsh case.
This decision led the government to repeal Part IV of the 2001 Act, and enact in its place the PTA. The PTA permits the Home Secretary to impose control orders upon terrorist suspects – citizen and non-citizen alike. Control orders are similar to a set of strict bail conditions, and typically impose restrictions on individuals such as curfew, electronic tagging, and restrictions on communication and association. (For a much fuller look the control order regime, see this article by Clive Walker).
The government’s use of control orders has been challenged in several different ways. The relevant strand of litigation related to the non-disclosure of information: those subject to control orders (and their lawyers) are not entitled under the PTA to see the full case against them. Disclosure is made to appointed lawyers known as special advocates, but the ability of the special advocate to communicate with the person concerned after seeing the sensitive material is severely limited. Certain persons subject to control orders challenged this aspect of the control order regime, claiming that it was incompatible with article 6 of the ECHR, protecting the right to a fair hearing.
In the somewhat confusing decision of MB, a majority of the House of Lords ruled that a special advocate could not invariably be counted on to mitigate the unfairness of the non-disclosure and ensure compliance with article 6. However, rather than declaring the control order regime incompatible with article 6, the majority read the provisions that allowed non-disclosure as being subject to a proviso of not creating breaches of article 6. However, the MB decision was not clear as to whether providing controlees the gist (or core) of the case against them was necessary to ensure compliance with article 6. After further litigation, this was clarified as indeed being necessary in the June 2009 decision of AF .
The control order imposed on AF, the first named appellant in that case, has been revoked because the Home Secretary has decided that he is unwilling to disclose the necessary information. Reportedly, many of the other 15 or so control orders currently in force will be allowed to lapse, assuming that lawyers for those concerned don’t force the action first. Update: since I have been writing this post, the Home Secretary has revoked one further control order (imposed on a person known as AE) for the same reason.
One can only speculate as to what the revoking of the control orders against AF and AE means. If one rules out bad faith, then presumably the Home Secretary considered keeping AF and AE – two of ‘Britain’s most dangerous terrorist suspects’ - subject to control orders as being less important than protecting the secrecy of the sources and means of intelligence that might have been revealed by disclosure.
Assuming that the article 6 line of decisions presages the end of the control order regime, then law-makers will once again be faced with the issue of whether to devise a replacement system for dealing with terrorist suspects, or whether to place renewed emphasis on criminal prosecution (and perhaps in the case of foreign terrorist suspects, deportation within the constraints imposed by Chahal).