Don’t renew control orders, CAMPACC, JUSTICE and the Joint Committee on Human Rights tell MPs

28.2.10

The House of CommonsTomorrow (March 1), Parliament will vote on whether to renew the government’s control order regime, a form of house arrest for alleged terrorist suspects, who are held without charge or trial on the basis of secret evidence. This lamentable system was established in haste in 2005, when the Law Lords ruled that the government’s previous response to the alleged terror threat — imprisonment without charge or trial, which was, in essence, a revival of “internment” — was illegal. Since last June, when the Law Lords ruled that imposing control orders breaches Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial, the system has appeared to be on its last legs, but the government is obstinately refusing to abandon it.

In recent days, three organizations have urged MPs not to renew the control order regime, which they must do on an annual basis for the system to survive. Firstly, Parliament’s Joint Committee on Human Rights issued its 16th report on Counter-Terrorism Policy and Human Rights. In a compelling document, available here, the Committee drew on evidence against the renewal of control orders provided by two of the detainees’ solicitors and also from three Special Advocates (who represent the men in closed sessions when secret evidence is discussed, but are then prevented from exchanging any information whatsoever with their clients) to reinforce its ongoing criticism of the regime. I recommend those with an interest in the topic to read the whole damning report, but reproduce below the final three paragraphs, which succinctly explain the problems with the regime, and call for its replacement with surveillance and prosecutions:

110. Since the introduction of the control orders regime in March 2005, on all previous annual renewals, we have expressed our very serious reservations about renewal unless the Government was prepared to make the changes to the system we have identified as necessary to render it human rights compatible. We warned that without those changes, the use of control orders would continue to give rise to unnecessary breaches of individuals’ rights to liberty and due process. Our warnings have been echoed by other international bodies charged with monitoring compliance with human rights.

111. The many warnings have not been heeded. As a result, the continued operation of the unreformed system has, as we feared, led to more unfairness in practice, more unjustifiable interferences with people’s liberty, more harm to people’s mental health and to the lives of their families, even longer periods under indefinite restrictions for some individuals, more resentment in the communities affected by or in fear of control orders, more protracted litigation to which there is no end in sight, more claims for compensation, ever-mounting costs to the public purse, and untold damage to the UK’s international reputation as a nation which prizes the value of fairness.

112. For a combination of these reasons, together with serious reservations about the practical value of control orders in disrupting terrorism compared to other means of achieving the same end, we have reached the clear view that the system of control orders is no longer sustainable. A heavy onus rests on the Government to explain to Parliament why alternatives, such as intensive surveillance of the very small number of suspects currently subject to a control order, and more vigorous pursuit of the possibility of prosecution, are not now to be preferred.

In a similar vein, JUSTICE, the UK-based human rights and law reform organization, which has repeatedly called for the government to join the rest of the world in finding ways to introduce intercept evidence into court (PDF), issued a 4-page briefing on February 25 (PDF), which began by noting:

JUSTICE continues to oppose the use of control orders … We recognize that the UK faces a serious threat of terrorism and that public officials are under a duty to take effective measures to prevent further attacks. Nonetheless, we remain of the view that control orders are:

  • unnecessary
  • ineffective; and
  • offensive to basic principle

JUSTICE also stated that, because of the extraordinary amount of terrorist legislation introduced in the last ten years (in 2000, 2001, 2005, 2006 and 2008), “It beggars belief that there are insufficient criminal offences with which to charge those suspected of involvement with terrorism.”

And finally, today (February 28), CAMPACC (the Campaign Against Criminalising Communities) published an open letter to home secretary Alan Johnson, signed by over 100 lawyers, academics, journalists and activists, calling for control orders to be dropped. The letter, which covers all the major problems with the regime, is reproduced below, with its signatories, following a short press release by CAMPACC, which accompanied the publication of the letter.

Parliament should not renew unjust control orders
Issued by CAMPACC (The Campaign against Criminalising Communities)

The House of Commons will debate whether the controversial control order system will be renewed on Monday 1st March 2010. There are serious concerns about the renewal of control orders from all sections of our civil society. Attached is an open letter to the Home Secretary from over 100 individuals drawn from a range of professions and organisations urging him to not to pursue their renewal.

Control orders constitute permanent punishment without trial whereby the innocent can be placed under permanent house arrest on the basis of secret intelligence, possibly flowing from torture. As well as undermining the presumption of innocence, control orders also fail to protect the public from individuals who may be genuinely dangerous. Those who may wish to do us harm may easily remove their electronic tags, disappear and do their worst.

The fact that British citizens and residents can be subjected indefinitely to such extraordinary measures, with no effective means of challenge, contravening in important respects common-law guarantees of fairness as well as Article 6 of the ECHR, has damaged the reputation of the United Kingdom and does irreparable harm to the fabric of justice in this country.

For further information contact Estella Schmid (email or phone 020 7586 5892).

Open letter to Home Secretary Alan Johnson MP

Dear Home Secretary,

We write to urge you not to renew the control order provisions of the Prevention of Terrorism Act 2005, introduced in haste in March 2005 following the House of Lords Judicial Committee’s condemnation of indefinite detention of foreign terrorist suspects. In the five years of their operation, control orders have attracted criticism from national bodies including the Joint Committee on Human Rights, Justice, Liberty and Amnesty International UK, and eminent international bodies including the International Commission of Jurists, the UN Human Rights Committee and Human Rights Watch. This has focussed on the inherent unfairness of the orders, their reliance on secret evidence, and the devastating impact they have on those subject to them.

Impact

You will be aware (through reports presented during litigation and press coverage) of the severe impact of the orders on family and private life, and on the mental health of those subjected to them. This is acknowledged by Lord Carlile in his fifth annual review of control orders [PDF]. Partial house arrest, confinement to a restricted geographical area, wearing a tag, and the constant need to report, to seek permission, to have visitors (even medical visitors) vetted, and the stigma associated with being targeted in this way, takes a severe toll not only on controlled persons but on their families. Children’s school performance is badly affected by denial of internet access (making homework very difficult), by restriction of visitors, by fathers being unable to take their children out freely, by the disruption and fear caused by frequent house searches, and by children witnessing the humiliation and despair caused to their parents by these measures. The detrimental impact of the orders is even worse since, although in theory time-limited to a year, in reality, renewal of orders means that subjection to these draconian restrictions is endless.

The fact that there have been so few control orders in the five years of their operation — 44 in total according to Lord Carlile — gives the misleading impression that those controlled must be truly dangerous. But the small number of orders does not necessarily mean that the intelligence behind them is accurate. Not many people were hanged for murder when the UK had capital punishment — but a significant proportion turn out to have been innocent.

Unfairness

Major sources of unfairness are the use of secret evidence and the lack of real advance judicial scrutiny. Permission to make a non-derogating order can only be denied by a High Court judge if the decision to make the order, or the grounds for making it, are ‘obviously flawed’. This, and the lack of input from the proposed subject of the order, would not be such a problem if the review process was not subject to such delays, but at present the full review hearing rarely takes place within 12 months. During all this time, of course, the controlled person is subject to the full rigours of the control order.

The judge may quash the order at the full review stage, but only if there is no reasonable suspicion of involvement in terrorist activities. It is a very low threshold for the Home Office, and is frequently satisfied by evidence that neither the controlled person nor his advocate has had an opportunity to test in cross-examination. This remains the case despite the Judicial Committee’s ruling in June 2009 (in AF and another v Secretary of State for the Home Department [2009] UKHL 28) that the controlled person is entitled to enough disclosure to be able to answer allegations [this is the Law Lords' ruling from June 2008, referred to above]; the Committee was referring to the amount of detail in the allegation, and not to the evidential foundation for the allegations, which generally remains closed. As Human Rights Watch has observed, the control order regime undermines the right to an effective defence, the principle of equality of arms, and the presumption of innocence.

Cost

Although it would be inappropriate to judge the control order regime by its cost-effectiveness as a principal criterion, it is reasonable to note that implementation of the orders has cost a fortune in litigation; the Joint Committee on Human Rights has calculated that total legal costs from 2006 to date are likely to exceed £20 million (taking into account the costs of legal aid and judicial sitting time), which is almost half a million pounds for each controlled person. Litigation has also seriously diminished the utility of the orders as a tool for controlling and disrupting terrorist activity, to the point where there must be very serious doubts as to their cost-effectiveness (compared with more targeted surveillance and effective use of the criminal justice system).

Reputation

The fact that British citizens and residents can be subjected indefinitely to such extraordinary measures, with no effective means of challenge, contravening in important respects common-law guarantees of fairness as well as Article 6 of the ECHR, has damaged the reputation of the United Kingdom and done irreparable harm to the fabric of justice in this country. In addition, public trust in the security services and the government is eroded, and communities whose co-operation is vital in the fight against terrorism are intimidated and alienated. In the words of solicitor Gareth Peirce, ‘This may affect only a small group of people but in terms of its contribution to what one might call the folklore of injustice it is colossal.’

For these reasons we urge you not to renew this legislation.

Yours sincerely

Mike Mansfield QC, criminal defence barrister, Tooks Chambers
Craig Murray, writer, broadcaster, human rights activist, former British Ambassador
Sir Geoffrey Bindman, solicitor
Lord Rea
Clare Short MP
John McDonnell MP
Victoria Brittain, writer and journalist
Dafydd Iwan, LL.D., President of Plaid Cymru, Party of Wales
Bruce Kent, Vice-President, Pax Christi
Louise Christian, human rights lawyer
Baroness Sarah Ludford MEP
Caroline Lucas MEP
Jean Lambert MEP
Frances Webber, human rights lawyer
Liz Fekete, Institute of Race Relation (IRR)
Carla Ferstman, Director, Redress
Ben Hayes, Statewatch
Peter Tatchell, human rights campaigner
Prof. Chris Frost, Head of Journalism, Liverpool John Moores University
Hilary Wainright, Co-editor, Red Pepper
Cori Crider, Legal Director, Reprieve
Paddy Hillyard, Emeritus Professor, QUB
Bob Jeffrey, University of Salford
Amrit Wilson, writer
Dr Richard Wild, University of Greenwich
Dr. Nafeez Mosaddeq Ahmed, Executive Director, Institute of Public Policy Research.
Andy Worthington, journalist and author of The Guantánamo Files
Lord Gifford QC, barrister and Vice-President of the Haldane Society of Socialist Lawyers
Liz Davies, barrister and Chair, Haldane Society of Socialist Lawyers
Anna Morris, barrister and Vice-Chair, Haldane Society of Socialist Lawyers
Professor Bill Bowring, barrister and International Secretary, Haldane Society of Socialist Lawyers
Dr Victoria Sentas, School of Law, King’s College London
Margaret Owen, Director WPD, international human rights lawyer
Phil Shiner, Public Interest Lawyers
Sam Jacobs, Public Interest Lawyers
Daniel Carey, Public Interest Lawyers
Tessa Gregory, Public Interest Lawyers
Moazzam Begg, Director, Cageprisoners
Massoud Shadjareh, Chair, Islamic Human Rights Commission
Aamer Anwar, human rights lawyer
Nick Hildyard, Sarah Sexton, Larry Lohmann, The Corner House
Desmond Fernandes, policy analyst and author
Dinah Livingstone, writer, translator, editor
Tim Gopsill, journalist, Editor of Free Press
Paul Donovan, journalist
Estelle du Boulay, The Newham Monitoring Project
Suresh Grover, Director of The Monitoring Group
George Binette, UNISON Camden
Arzu Pesmen, Kurdish Federation UK
David Morgan, Peace in Kurdistan Campaign
Alex Fitch, Peace in Kurdistan Campaign
Matt Foot, solicitor
Hugo Charlton, barrister
Dr Kalpana Wilson, London School of Economics
Jonathan Bloch, Lib Dem Councillor and author
Michael Seifert, solicitor and Vice-President of the Haldane Society of Socialist Lawyers
Kat Craig, solicitor and Vice-Chair, Haldane Society of Socialist Lawyers
Khatchatur I. Pilikian, Professor of Music & Art
Dr Alana Lentin, Senior Lecturer, Sociology, University of Sussex
Dr Christina Pantazis, University of Bristol
Professor Steve Tombs, Liverpool John Moore University
Claire Hamilton, Dublin Institute of Technology, Dublin
Professor Phil Scraton, School of Law, Queen’s University, Belfast
Dr Theodore Gabriel, University of Gloucestershire, Cheltenham
Dr Jan Gordon, University of Lincoln, Exeter
Dr Tina Patel, University of Salford
Professor Penny Green, Kings College, London
John Moore, University of West of England, Bristol
Professor Joe Sim, Liverpool John Moore University
Dr David Whyte, University of Liverpool
Dr Stephanie Petrie, University of Liverpool
Dr Dianne Frost, University of Liverpool
Martin Ralph, (UCU Committee), University of Liverpool
Dr Anandi Ramamurthy, University of Central Lancashire
Professor Jawed Siddiqui, Sheffield Hallam University
Dr Silvia Posocco, Birkbeck College, University of London
Dr Muzammil Quraishi, University of Salford
Dr Adi Kuntsman, University of Manchester
Professor Lynne Segal, Birkbeck College, University of London
Dr Joanne Milner, University of Salford
Dr Yasmeen Narayan, Birkbeck College, University of London
Professor Scott Poynting, Manchester Metropolitan University
Dr Liam McCann, University of Lincoln
Dr Pritam Singh, Oxford Brookes University
Sophie Khan, solicitor
Simon Behrman
Owen Greenhall
Martha Jean Baker
Russell Fraser
Ripon Ray
Stephen Marsh, barrister
Declan Owens
Rheian Davies, solicitor
Richard Harvey barrister
Deborah Smith, solicitor
Alastair Lyons, solicitor, Birnberg Peirce
Hossain Zahir , barrister
Chantal Refahi , barrister
Anna Mazzola, solicitor
Zareena Mustafa, solicitor
Lochlinn Parker, solicitor
Anne Gray, CAMPACC
Saleh Mamon, CAMPACC
Estella Schmid, CAMPACC
Dr Saleyha Ahsan, No More Secrets-Respect Article 5, film maker
Mohamed Nur, Kentish Town Community Organisation
Abshir Mohamed, Kentish Town Community Organisation
Samarendra Das, filmmaker and writer
Rebecca Oliner, artist
Rebekah Carrier, solicitor
Dr Smarajit Roy, PPC Green Party Candidate for Mitcham and Morden
PM Forbes, The Green Party, Sandhurst, Berkshire
Jayne Forbes, Chair, Green Party
Adrian Cruden, Green Party PPC Newsbury
Lesley Hedges, Green Party PPC Colne Valley
Sarah Cope, Green Party PPC Stroud Green
A Bragga, Green Party PPC for Stroud Green
Graham Wroe, lecturer, Sheffield Green Parry
Ånthony Agius, Hounslow Green Party PPC
Roy Vickery, Green Party PPC for Jostag

Note: Readers can also find a campaign against control orders on Liberty’s website, which I referred to in a recent article, “Will Parliament Rid Us of the Cruel and Unjust Control Order Regime?” and an Early Day Motion against the use of secret evidence, introduced by Diane Abbott MP, can be found here.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Deals with dictators undermined by British request for return of five Guantánamo detainees (August 2007), Britain’s Guantánamo: the troubling tale of Tunisian Belmarsh detainee Hedi Boudhiba, extradited, cleared and abandoned in Spain (August 2007), Guantánamo as house arrest: Britain’s law lords capitulate on control orders (November 2007), The Guantánamo Britons and Spain’s dubious extradition request (December 2007), Britain’s Guantánamo: control orders renewed, as one suspect is freed (February 2008), Spanish drop “inhuman” extradition request for Guantánamo Britons (March 2008), UK government deports 60 Iraqi Kurds; no one notices (March 2008), Repatriation as Russian Roulette: Will the Two Algerians Freed from Guantánamo Be Treated Fairly? (July 2008), Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? and URGENT APPEAL on British terror laws: Get your MP to support Diane Abbott’s Early Day Motion on the use of secret evidence (all April 2009), and Taking liberties with our justice system and Death in Libya, betrayal in the West (both for the Guardian), Law Lords Condemn UK’s Use of Secret Evidence And Control Orders (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), Britain’s Torture Troubles: What Tony Blair Knew (June 2009), Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws, Would you be able to cope?: Letters by the children of control order detainee Mahmoud Abu Rideh, Control order detainee Mahmoud Abu Rideh to be allowed to leave the UK (all June 2009), Testing control orders and Dismantle the secret state (for the Guardian), UK government issues travel document to control order detainee Mahmoud Abu Rideh after horrific suicide attempt (July 2009), Secret evidence in the case of the North West 10 “terror suspects” (August 2009), Letting go of control orders (for the Guardian, September 2009), Another Blow To Britain’s Crumbling Control Order Regime (September 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009), Calling Time On The Use Of Secret Evidence In The UK (December 2009), Compensation for control orders is a distraction (for the Guardian, January 2010), Control Orders Take Another Blow: Libyan Cartoonist Freed (Detainee DD) (January 2010).

2 Responses

  1. Craig Murray » Blog Archive » Control Orders says...

  2. Counter-terrorism, Rights and the Rule of Law: How Far Have We Come Since Executive Detention? - Human Rights in Ireland says...

    [...] In the immediate aftermath of 9/11 the rapidly enacted Anti-Terrorism Crime and Security Act of 2001 (‘ATCSA’) implemented a policy of executive detention of non-UK nationals (s.23). Little over four years later the House of Lords handed down the oft-cited and widely commented upon judgment in A v Secretary of State for the Home Department (‘A’) holding that the power was incompatible with the ECHR.  The judgment was seen by some as striking a first, and significant, blow against the Government’s counter-terrorism agenda and as sending a clear rights-enforcing message. Through the subsequent enactment of the Prevention of Terrorism Act 2005 the Government replaced executive detention with control orders (ss.1-9).  This regime remedied one source of criticism of executive detention by allowing individuals of any nationality to be detained.  However, whilst the new powers avoided the directly discriminatory nature of executive detention in so-doing they broadened the potential applicability of other of its rights-infringing characteristics, which were retained within the new regime.  Control order restrictions cause significant disruption to the individual controlee’s life with damaging long-term effects, as illustrated by Cerie Bullivant’s account of being subject to a control order.  As a result the control orders regime has been criticised by Amnesty International, Human Rights Watch, Liberty and other human rights organisations. [...]

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