Prevention of Terrorism Act 2005 (Continuance in force of Sections 1 to 9) Order 2009
House of Lords
Lord West of Spithead (Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office; Labour)
On
"this House regrets that, following the judgment of the House of Lords in Secretary of State for the Home Department v AF and the subsequent revocation of AF's control order on the ground that he did not have a fair hearing, Her Majesty's Government have not, in the five years since the Act was passed, found a means of dealing with suspected terrorists that is just and effective; and calls on the Government to introduce primary legislation to limit the duration of control orders to a maximum of one year, without renewal".
The amendment to the Motion was carried by 50 votes to 43. Previously that evening, a fatal amendment to the Motion seeking the House's approval of the order was disagreed to by the House.
The Government take seriously the concerns of the House, and keep the policy in this area under regular review. Careful consideration is given to any suggestion for change and improvement in the current arrangements. That said, the Government consider that the current system of control orders is both just and effective-for the reasons that I set out during the debate on
The protection of human rights is a key principle in all of our counterterrorism work-including in the use of control orders. Control orders are subject to numerous checks and balances, including judicial oversight in every case. During its review of the control order, the High Court must determine whether the Secretary of State's decision to make a control order was flawed. The judge must thus agree (a) that there is reasonable suspicion that the individual is or has been involved in terrorism-related activity, and (b) that a control order is necessary for purposes connected with protecting members of the public from a risk of terrorism. The judge must also satisfy himself that each obligation imposed by the order is necessary, and compatible with the European Convention on Human Rights-including Articles 5 (right to liberty) and 8 (right to respect for private and family life). The judge will further ensure that the individual's right to a fair hearing in accordance with Article 6 is protected-which is now considered in the light of the Law Lords' June 2009 judgment in AF and Others. If any of these tests are not met, the judge can quash the order, quash one or more obligations imposed by the order or give directions for the revocation of the order or for the modification of the obligations it imposes.
The Government accept that control orders cannot entirely eliminate the risk of an individual's involvement in terrorism-related activity in every case. No executive action can do this. But in most cases control orders have restricted and disrupted that activity, and in some cases they have successfully prevented involvement in terrorism-related activity. The reports on control orders of the independent reviewer of terrorism legislation, Lord Carlile of Berriew QC, support this conclusion. His 2009 report made clear his view that control orders were "a largely effective necessity for a small number of cases, in the absence of a viable alternative for those few instances". His 2010 report examines individual cases in greater detail. In that report, he includes some more detailed commentary on effectiveness. For example, he states in relation to three controlled individuals that in each case the order:
"has substantially reduced the present danger that exceptionally they still present despite their having been subject to a control order for a significant period of time. Unless control orders were replaced by some equally disruptive and practicable system, in these cases the repeal of control orders would create a worryingly higher level of public risk".
And in another case, Lord Carlile notes the controlled individual:
"is assessed as a dangerous terrorist who would re-engage with terrorism the moment he could. I agree with this assessment, and that the control order is an effective intervention. I have no doubt that the removal of his control order would immediately increase risk in the UK and to UK interests elsewhere".
The Home Office works with partners to take every available step to protect the public from the threat we face from terrorism, including continuing to ensure that all control orders are as effective as they can be.
The Government do not intend to introduce primary legislation to limit the duration of control orders-whether to a maximum of one year without renewal, or to a maximum of two years save in exceptional circumstances, as Lord Carlile has previously proposed.
The Government's position continues to be that control orders should be imposed for as short a time as possible, commensurate with the risk posed. However, the Government have national security concerns about imposing an arbitrary end-date to control orders, regardless of the risk posed by that individual. Each order is addressing individual risk. There are obvious risks about assuming individuals no longer pose a threat after a defined period of time. If, to protect the public from the risk of terrorism posed by an individual, a control order is still necessary and proportionate, it is the Government's responsibility to renew that control order. A definite end-date would also mean individuals on control orders could simply disengage from involvement in terrorism-related activity on the basis that they knew they could re-engage at the end of that time period.
EWHC 142 (Admin)), the High Court upheld the second renewal of a control order, meaning that the judge in that case also agreed that a control order remained necessary to protect the public from a risk of terrorism for a longer period than two years. He made the following observations on this matter:
"Lord Carlile in reporting on the use of control orders has indicated that it is his view that no person should remain subject to an order for more than two years, save in rare cases. He believes that such a person's usefulness for terrorist purposes will have been seriously disrupted. The Government have not accepted that there should be what it describes as an arbitrary end date for individual orders. If there is evidence that an individual remains a danger, an order should continue for however long is necessary. That I entirely accept, and, to be fair, Lord Carlile recognised that there could be cases in which a duration of more than two years was appropriate. Much will depend on whether there is material which persuades the Secretary of State and the court that the individual remains a danger because he has been, notwithstanding the order, continuing so far as he could his terrorist-related activities or because he is likely to do so once an order is lifted. That in my view is the position with GG".
Lord Carlile accepts in his 2010 report on control orders that there have been cases where the imposition of a control order against an individual can be justified for more than two years.
The statutory test in control orders legislation already ensures that the Government can only lawfully renew a control order if it is necessary to do so. And any decision by the Secretary of State to renew a control order can be appealed by the controlled person-and the High Court must agree that the test has been met. This ensures that rigorous judicial scrutiny of the necessity of the control order continues throughout the duration of the order.
The Government continue to work hard to identify exit strategies for every control order case. This is an integral and significant part of the Control Order Review Group's formal quarterly review of each control order. In his 2010 report on control orders, Lord Carlile stated that he is "satisfied that in every case there is an ongoing search for a strategy for the ending of the order".
Control orders continue to be an important tool to protect the public from the risk of terrorism where individuals whom we suspect of involvement in terrorism-related activity cannot be prosecuted or deported. While recognising the House's concerns, we remain of the view that control orders are a vital element of our overall approach to counterterrorism, and we do not believe that introducing primary legislation to limit control orders to one year without renewal would be in the national interest.