Anti Terrorism Bill - 2005

This is a genuine issue which really does put genuine strain on MPs to make the right decisions. I think Simon Hoggart put it nicely in the Guardian when he explained that only MPs have to make real decisions - the rest can sit back and never see the consequences of our idle chatter. As he says if a terrorist attack took place in London and it emerged that the security services knew something was going on but didn't have enough evience to do anything - people would rightly be asking why the government didn't do more.

I have personally accepted that in certain circumstances there will be times that the police and security forces need a power above surveilance and below a full arrest - as there is insufficient evidence. Some may argue on a point of principle that without full evidence there shoud be no denial of any freedom. I understand and respect that point of view. I think if I was sitting in the comfort of my sitting room watching the TV I would think the same. That is why have I have found this such a difficult issue to grapple with.

In order to make the Control orders more acceptable I urged the Home Secretary to allow Judges to be involved. I am pleased that he has conceeded this point at least. I was satisfied enough to suport the measure going through the Commons.

Q&A on some key aspects - replies from the Home Office

NOTE ON NON-DEROGATING CONTROL ORDERS

This note addresses some of the issues raised in the Second Reading debate on the Prevention of Terrorism Bill. It is intended to help inform debate for the Committee Stage.

There are two types of control orders - derogating control orders and non-derogating control orders. Derogating control orders are ones which can impose restrictions amounting to a deprivation of liberty. Other control orders are called non-derogating control orders. This note is primarily concerned with the latter.

What is a deprivation of liberty?

“Deprivation of liberty” is a technical term which appears in Article 5 of the European Convention on Human Rights.

All control orders will impose greater or lesser restrictions on the activities and movements of individuals. They will interfere with Convention rights, such as the right to respect for private and family (Article 8), freedom of expression (Article 10) and freedom of assembly and association (Article 11).

Interference with those rights is permissible under the ECHR provided it is justified by a legitimate aim and is proportionate. This involves no derogation from the ECHR.

This is not the same as a “deprivation of liberty”. Mere restrictions on freedom of movement, freedom to choose residence and freedom to leave a country do not fall within the concept of deprivation of liberty.

What is necessary for a deprivation of liberty is that the extent to which a person’s physical liberty is curtailed is of a degree and intensity sufficient to justify a conclusion that liberty has been deprived and not merely restricted.

When can a control order impose measures amounting to a deprivation of liberty?

For a control order to be able to impose measures amounting to a deprivation of liberty there would need to be a designated derogation order in place – ie an order made under the Human Rights Act which would be confirmed by a resolution of both Houses. The designated derogation order would have to specify the types of restrictions which could be imposed under a derogating control order.

It would therefore be clear from the description of the restrictions imposed by a control order that it was intended to be a derogating control order and it would be subject to the specific regime and safeguards set out in the Bill. These include the requirement for confirmation of the order by a High Court judge within 7 days, followed by a full re-hearing at which the Court will decide for itself whether the individual is or has been involved in terrorism related activity, whether a derogating control order should be made, and what obligations should be imposed.

It is the case that a combination of measures – not specifically provided for in the designated derogation order - could amount to a deprivation of liberty within the meaning of Article 5 ECHR. But if a control order contained such measures it would be unlawful and would be quashed by the court on appeal.

Why should the Secretary of State make non-derogating control orders?

Control orders are preventative orders. They are designed to prevent future atrocities from happening—they are not designed to punish a person for past events. They require an assessment of the overall security situation; of the risks posed by particular individuals; and of what measures (from a potentially wide range) are necessary and appropriate to meet those risks. The assessment must be carried out on the basis of a wide range of complex intelligence material and involves inferences and evaluations being made in relation to matters affecting national security. This is a role which the Secretary of State is best placed to carry out rather than the courts.

Isn’t the test of “reasonable suspicion” too low?

For the reasons given above, this is not an area where either the Secretary of State, or the court, will be dealing with proof of issues of fact. It is essentially an exercise in risk assessment and evaluation of intelligence material in the national security context. Having reasonable grounds to suspect that an individual is or has been involved in terrorism-related activities is just one part of the overall assessment of the risk posed by the individual and the measures necessary to meet that risk. The courts have recognised in similar contexts that this is an appropriate test. In the case of Rehman, which concerned a deportation order on the ground that it would be conducive to the public good in the interests of national security, Lord Hope said:

“… the whole concept of a standard of proof is not particularly helpful in a case such as the present. In a criminal or civil trial in which the issue is whether a given event happened, it is sensible to say that one is sure that it did, or that one thinks it more likely than not that it did. But the question in the present case is not whether a given event happened but the extent of future risk. This depends upon an evaluation of the evidence of the appellant’s conduct against a broad range of facts with which they may interact. The question of whether the risk to national security is sufficient to justify the appellant’s deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take account of probability of prejudice to national security but also the importance of the security interests at stake and the serious consequences of deportation for the deportee.”

The Special Immigration Appeals Commission and the Court of Appeal accepted that a similar test was appropriate in the context of Part 4 ATCSA and the same arguments apply in relation to control orders.

What limits are there on the restrictions which may be imposed?

It is wrong to suggest that just because the Bill sets out a wide range of restrictions potentially available in a control order the Secretary of State can impose whatever he likes without limit.

First, the Bill itself makes it clear that a control order can only impose obligations which the Secretary of State considers “necessary” for preventing or restricting further involvement of the individual in terrorism related activities.

But secondly, the Secretary of State is required by law (section 6 HRA) to act compatibly with the Convention rights of the individual and his family. It would be unlawful for him to impose restrictions which breached their convention rights and the courts would quash an order which did. Interferences with private and family life, association, and communication will have to be expressly justified in each case by a specific aim which is permitted by the Convention (normally national security), and they will also have to be proportionate to that aim. The Secretary of State will have to weigh up very carefully in each case whether measures can be imposed (and if so what measures) which are consistent with the Convention rights of the individual and his family. And his decision will be subject to rigorous scrutiny by the courts.

More generally, the Secretary of State will be required to report to Parliament every three months on the exercise of his powers to impose control orders, and the operation of the legislation will be reviewed annually by an independent reviewer

What degree of judicial scrutiny is given in relation to non-derogating control orders?

There will be a statutory appeal to the High Court (or Court of Session) in which the court will apply the principles applicable on an application for judicial review.

Judicial review is concerned with reviewing whether the decision maker could properly make the decision he did. But it is entirely wrong to characterise it as a procedure which is only concerned with law and procedure. Even before the Human Rights Act, courts on judicial reviews would where appropriate look at the facts to see whether they could support the decision reached. Since the Human Rights Act came into force the courts have applied a more intensive level of scrutiny – which will be even more intensive depending on the degree of interference with human rights. This will involve considering in detail (with cross examination of witnesses where appropriate) whether the factual material does justify the decision reached by the Secretary of State and whether the decision is proportionate.

Moreover, in making a control order there is a wide range of potential restrictions which could be applied. A judicial review type approach is entirely appropriate for scrutinising the exercise of discretionary powers of this kind. Every day, ministers and public authorities are taking decisions which potentially affect the human rights of individuals. Judicial review is the remedy available to those who consider that their rights have been breached and it is an effective remedy.

Will legal aid be available?

Legal aid will be available for those subject to a control order subject to the usual eligibility criteria.