UK Parliamentary Committee AGAIN questions control orders

Privacy International

04/03/2005

For the second time in a week, the Joint Committee on Human Rights, comprised of MPs and Lords, find serious flaws in the Prevention of Terrorism Bill. They question the speed of the legislating process, the very need for control orders, the problems in the judicial process, and the failures of the politician-ordered control orders, as well as the use of torture evidence.

The report is available on the Parliament website; we have pasted relevant quotations below, organized by topic.

On the Speed of Legislating this Bill

We regret that the rapid progress of the Bill through Parliament has made it impossible for us to scrutinise the Bill comprehensively for human rights compatibility in time to inform debate in Parliament.

On the Process for Judicial Orders

The proposed procedure for making such orders is that the Secretary of State will make an application to the High Court for an order ex parte, that is, without notice to the individual who is to be made the subject of the order. On such an application, which will be heard as quickly as possible (within 24–48 hours), the court will look at all the material on which the application was based and decide whether there is a prima facie case. If satisfied that there is, the judge will make the order, which will then be automatically referred to a full inter partes hearing. The inter partes hearing will include closed sessions, during which the interests of the subject of the order will be represented by a special advocate. In addition, the Government has tabled amendments giving the police a new and specific power of arrest and detention so that the subject of the application could be detained pending the judge’s decision on whether to make the order and any order being served.

We still question, however, whether the procedure contained in the Government’s amendments secures a sufficient degree of prior judicial involvement to be compatible with the requirements of the Convention, for three main reasons.

5. First, the fact that the application by the Secretary of State is ex parte means that there will be no adversarial procedure before the making of a derogating control order. We accept that there should be the facility to make an ex parte application in an appropriate case, for example where there is a legitimate fear of disappearance or in other circumstances where the purpose of the application will be defeated if it is made on notice to the person concerned. In the absence of such concern, however, we see no reason why the hearing should not be inter partes at this preliminary stage, particularly if there is a power to detain the person concerned pending such an application (as there will be under the Government’s own proposals and as in our view there already is under the current law).

6. Second, at such a hearing the test to be applied by the court is effectively whether there is a prima facie case for the making of an order. It could be said to be equivalent to the decision by a criminal court as to whether there is a case to answer. This is a low threshold for the making of a judicial order which deprives the individual of liberty, particularly when one bears in mind the width of the definition of conduct which is capable of amounting to involvement in terrorism-related activity. It falls far short of a requirement that the court be satisfied itself of the necessity for an individual to be deprived of their liberty.

7. Third, the procedure at the subsequent inter partes hearing will include closed sessions during which the interests of the subject of the order will be represented by a special advocate.

On Politician Orders

In our view the unprecedented scope of the powers contained in the Bill, and the potentially drastic interference with Convention rights which they contemplate, warrant a greater degree of judicial control than access to an ex post supervisory jurisdiction.

We regret, however, that having now accepted the principle of prior judicial authorisation in relation to derogating control orders, the Government does not accept that the procedure for non-derogating control orders should be the same. Apart from providing for appeals to be heard quickly the Government proposes to leave the process for making non-derogating control orders the same as currently in the Bill.

In our view, prior judicial involvement is therefore required in order for there to be an independent safeguard against arbitrary deprivations of liberty through the exercise of the power to make non-derogating control orders.

15. We also note that non-derogating control orders will be capable of imposing restrictions which fall short of deprivations of liberty but which nevertheless interfere with important rights in respect of which prior judicial authorisation is already required by law. For example, a non-derogating control order can impose a requirement that the subject of the order agree to specified persons having virtually unlimited powers of entry, search and seizure over their home. Such searches generally require prior judicial authorisation under the ordinary law, in the form of warrants of authority, but this important safeguard will effectively be dispensed with in relation to those made subject to non-derogating control orders. This is why in our Report on the Review of Counter-terrorism Powers in which we recommended that the use of civil restriction orders be further explored, we also considered that such orders would have to be accompanied by sufficient procedural safeguards, such as access to an independent judicial determination of whether the underlying allegation was well-founded.

On the very need for control orders

8. We note that the Home Secretary’s justification for not going further and embracing prior judicial authorisation in its entirety now appears to be that the Secretary of State needs the power to act swiftly in relation to individuals who may be a threat in circumstances where there is not time to go before a judge either before the risk materialises or before the individual disappears. ...

9. We are not persuaded that any [gap in the law] exists in the present legal framework. If the security services or police are in possession of information suggesting that a person isinvolved in an imminent terrorist attack, there is already a power to arrest him on suspicion of involvement in an offence under the Terrorism Act 2000, and he can then be detained for up to 14 days without charge, during which time investigations can be carried out, evidence can be gathered and the person can be brought to court to determine whether a control order should be made pending the outcome of the criminal investigation. We do not therefore consider this to be a good justification for not providing in the Bill for a procedure amounting to full prior judicial authorisation in cases concerning deprivation of liberty.

10. We therefore question whether the degree of prior judicial involvement provided for in the Government’s amendments in relation to derogating control orders is compatible with the Convention requirement that deprivations of liberty must be lawful. We question whether an ex parte hearing to determine whether there is a prima facie case for making a control order, followed by an inter partes hearing which is still not fully adversarial because of the use of special advocates in closed sessions, constitutes a sufficient safeguard against arbitrary detention to satisfy the basic requirement of legality.

On the Home Secretary Authorisation

16. Both the Home Secretary and the Prime Minister have been very candid in saying that they are proposing legislation of this exceptional kind because they do not want it to be possible for them to be accused of not doing more to protect the public in the event of a terrorist attack succeeding. Although we find this sentiment to be entirely understandable in elected representatives who are directly accountable to the public, we also consider that it demonstrates precisely the reason why independent safeguards for individual liberty are essential. A person who is determined to avoid being accused of failing to do more to protect the public is extremely unlikely to be the best person to conduct a rigorous scrutiny of the strict necessity of a particular order. That role is best performed by independent courts.

17. Although we have been appointed the parliamentary guardians of the Human Rights Act, and we regard it as our role robustly to defend the important role of Parliament in the scheme of that Act, we regard the preservation of the role of the independent judiciary as being fundamental to both the rule of law generally and the particular model of human rights protection to which Parliament committed itself in the Human Rights Act. As we commented in relation to the Government’s introduction of an ouster clause in the Asylum and Immigration Bill, an effective right of access to judicial protection is fundamental to the protection of human rights.

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