Control Orders: complex decisions for Coalition and society
As we progress as a society it naturally becomes harder to balance higher expectations of civil liberties with the requirements of national security.
Control orders provide an alternative to prosecution in relation to suspected terrorists. Introduced under the Prevention of Terrorism Act 2005, they can be made against anyone in the UK suspected of terrorism-related activity. The orders came about post-9/11 when Islamists in the UK were suspected of planning attacks but could not be deported under Article 3 of the European Convention on Human Rights, which prohibits return to a country where torture or persecution may follow. Incarceration without charge would similarly have breached basic liberties. The orders have been used 45 times since 2005, with 7 abscondments. In 2011, only 11 men remain under control orders. Estimated legal costs to the taxpayer stand at £8 million.
Control orders can impose curfews of up to 18 hours, restrict movement, communications and employment, and extend to living arrangements. Two conditions must be satisfied: the Home Secretary must have 'reasonable grounds for suspecting that the individual is or has been involved in terrorism-related activity', and must show that 'it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to make a control order imposing obligations on that individual'.
The regime allows a security-cleared barrister — a 'special advocate' — to see secret evidence alongside the judge, but not to take instructions from the suspect on that material. In February 2009, the European Court of Human Rights ruled this mechanism breached Article 5 of the ECHR. In June 2009, the House of Lords ruled it also breached Article 6, requiring that in every case the controlled person receive sufficient information for their special advocate to effectively challenge the case against them.
There is a genuine dilemma at the heart of this issue. On one hand, a potentially dangerous individual is suspected of terrorism-related activities; exposing the intelligence in trial may put the public at greater risk. On the other, the question of what a just and liberal society requires cannot be brushed aside. Arguments for control orders typically focus on the extreme consequences of a successful terrorist attack justifying restrictions on liberty. Arguments against focus on the gap between suspicion and proof, and the injustice of severe restrictions imposed without proper judicial process.
The use of telephone interception evidence in British courts remains illegal and non-admissible, which further complicates the picture: intelligence-led operations often rest on evidence that would be compelling but is inadmissible in open court.
Lord Carlile, the government's reviewer of anti-terrorism legislation, has suggested a three-tier replacement system placing varying degrees of restriction on suspects, from foreign travel bans for those suspected of travelling to train in terrorist camps, through general travel restrictions for those with a more developed intent, to activity restriction orders for the most serious cases — where a judge is satisfied on the balance of probabilities that the individual is a terrorist.
Theresa May announced a review of secret evidence, to be led by Sir Malcolm Rifkind, which will form a central pillar of any reform. She made an announcement on the future of control orders when Parliament reconvened on 11 January. Many argue the last government was responsible for a 'slow creep of complacency' on anti-terrorism issues. The test, as so often, will come down to the balance of liberty and security. The likely result will not be a scrapping of the orders but a revised form allowing more flexibility based on the gravity of each individual case — 'control orders 2.0', as it were — which will remain at the top of the civil rights agenda.