Will Parliament Rid Us of the Cruel and Unjust Control Order Regime?

19.2.10

Since last June, when, in the wake of a significant ruling in the European Court of Human Rights, 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 established in haste and paranoia in early 2005 has been crumbling.

In the last eight months, several former detainees have had their control orders quietly dropped, and other orders have been quashed or revoked by judges. Nevertheless, twelve of the orders, which, on the basis of secret evidence, consign detainees to a life of virtual house arrest, with severe restrictions on their liberty, remain in force.

Those held on control orders — including British citizens, who, in some cases, have been subjected to a form of “internal exile,” forcibly removed from their homes and made to live in other parts of the country — have, understandably, learned to be wary of suggestions that the system is on its last legs, and with good reason.

On February 1, Lord Carlile, the government’s independent reviewer of terrorism legislation, concluded his fifth annual review of control orders (PDF), which failed to endorse calls for the much-criticized system to be replaced by a combination of established surveillance techniques, or trials incorporating intercept evidence.

Instead, Lord Carlile maintained that there was “no better means of dealing with the serious and continuing risk posed by some individuals” than control orders, and claimed that “abandoning the control orders system entirely would have a damaging effect on national security.”

“I have considered whether control orders can or should be replaced by something else, or even renamed,” he continued, adding, “I have been unable to find, or devise, a suitable alternative for the important residue of cases that cannot be dealt with by prosecution.”

For the system’s many critics, the only positive aspect of Lord Carlile’s report was his advice that control orders should only be used in “a small number of cases.” He added, however, that this small number concerned cases “where robust information is available to the effect that the suspect individual presents a considerable risk to national security, and conventional prosecution is not realistic.”

This, of course, endorses the continuation of the flawed rationale that has sustained the regime to date — which, essentially, is based on an assumption that traditional notions of guilt or innocence and of a suspect’s right to test the allegations against him in a court of law are quaint and outdated. Critics were not reassured by Lord Carlile’s additional recommendation: that control orders are “no longer suitable for cases where the main objective is to prevent travel abroad.” He added, “In such cases, after further legislation, there should be available a Travel Restriction Order, with a limited range of obligations.”

Among the critics who pounced on Lord Carlile’s report was Isabella Sankey, Liberty’s director of policy, who noted that “Suspects are driven mad by endless punishment without charge.” She told the Guardian, “There are reams of criminal offences with which to charge terror suspects. The Home Office should stop trying to save face over this discredited policy and pass the case files to the CPS [Crown Prosecution Service] where they belong.”

Two days after Lord Carlile’s report was issued, the Joint Committee on Human Rights, comprising members of the House of Commons and the House of Lords, met to hear oral evidence on “Counter-Terrorism Policy and Human Rights: Control Orders” from two solicitors representing control order detainees (Gareth Peirce and Sean Mcloughlin), and three Special Advocates (Helen Mountfield, Angus McCullough and Thomas de la Mare) who represent the detainees during discussions of secret evidence in court. The transcripts of the hearings are available here and here, and they make for fascinating reading.

Gareth Peirce and Sean Mcloughlin, for example, provided poignant examples of the kinds of pressure that individuals and their families — including British nationals — are placed under. Describing the “internal exile” of British suspects, Gareth Peirce explained:

It is being applied to British citizens who have grown up, for instance, in east London all their lives, whose grandparents are there, whose wife’s grandparents are there, who are suddenly parachuted into a place in Nottinghamshire, in Gloucestershire, where the man is told from there on in he has to live there, that it is a modification of his control order, and, to be frank, the women in this are treated with complete contempt. It is as if they do not exist. The man is told, “Your wife, if she works, can find another job; she can join you if she wants to or she can stay in east London. We know that you can find schools for the children in the area”, and the effect of this on a number of families is quite extraordinary.

She added, “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.”

In addition, the evidence provided by the Special Advocates opened a window into a corner of modern British law that receives far too little scrutiny. In the bizarre world of the British government’s post-9/11 terror legislation, the Special Advocates represent the detainees in closed sessions in court, where classified evidence is discussed, but are not allowed to mentioned anything discussed in the closed sessions with either their clients or their lawyers. This absurd situation figured prominently in the Law Lords’ criticism of the regime, because they noted that one of the major obstacles to fairness (the right to a fair trial guaranteed under Article 6 of the ECHR) was that a suspect held under a control order is not given “sufficient information about the allegations against him to enable him to give effective instructions to the special advocate assigned to him.”

All five witnesses provided the Committee with ample evidence that, despite the Law Lords’ ruling leading to a number of control orders being dropped, so that the entire regime “is on the rocks,” as Gareth Peirce explained, “the Home Office clings to the wreckage and it will construct some other vessel out of it, or it will attempt to,” as Peirce also explained. As the solicitor for many of the men subjected to control orders, Peirce also pointed out that, although some control orders had been dropped as a result of the Law Lords’ ruling:

In all cases in which it applied, the arguments are still going on in court in different ways. Some control orders have been revoked; some have been quashed. The Home Office says quashing should not apply because that has a completely retrospective effect, which means they were always unlawful, so there is still further argument. Some of those people are still under control orders because the Home Office has sought a different basis on which to impose them.

When the Earl of Onslow asked Peirce if she was “back to the cat and mouse game again,” she replied, “We are entirely in the same game,” and later, when the Chair of the Committee, Andrew Dismore, the Labour MP for Hendon, asked, “Are you getting anything more disclosed in practice?” her answer was a resounding, “No.”

The “different basis” for the imposition of new control orders that Peirce mentioned — otherwise known as “light touch” control orders — was elaborated on in the evidence provided by the Special Advocates. Asked to describe a “light touch” control order, Helen Mountfield explained:

An ordinary control order tends to have somebody required to remain at home for perhaps between nine and 13 hours a day, not to have internet access, not to have visitors without prior approval and so on. The light touch control orders no longer have that house arrest element in them but they restrict people from travelling abroad, from having more than one mobile telephone, from going away from home for a night without giving 48 hours’ notice, that sort of control.

Crucially, she added, “They are less restrictive but certainly in my view still sufficiently restrictive to have a serious effect on people’s everyday lives.”

However, what troubled the Special Advocates even more was the fact that the obstacles raised to prevent them adequately representing their clients had not been resolved by the government’s response to the Law Lords’ ruling — or in the advice offered by Lord Carlile. As Angus McCullough stated, the problem was “one of communication,” and he went on to explain:

Following receipt of the closed evidence the special advocate is prohibited from communicating with the open representatives of the controlled person himself other than in writing and through the court and in the full knowledge of the Secretary of State … That feature of the rules, as this Committee will be well aware, has been the subject of criticism not only from this Committee but other bodies as well, and it remains a profound concern of the special advocates. The position has, at least in theory, been slightly alleviated by the House of Lords decision in AF [the ruling in June 2008] but the existing prohibition in our view … remains a significant constraint on the special advocates’ ability to discharge their role effectively even in control order proceedings.

Angus McCullough also noted that the Lords’ ruling “does not, at least currently, apply in SIAC proceedings [where other suspects are imprisoned or held on bail pending deportation], so it is even more acute there.” He also explained that, although the Special Advocates had raised these problems of communication with Lord Carlile, his attempts to dismiss the complaints by claiming in his report that “improved training and closer co-operation should resolve the concerns” were thoroughly inadequate. As McCullough explained:

[T]he problem is hardwired into the current rules, so we do find it hard to understand why Lord Carlisle concludes by doubting that any rule changes are necessary. In our view rule changes are necessary in order to address this problem and we have made our suggestions relatively modest and unambitious, as we see them, as to ways in which the present system could and should be relaxed.

He added that less restrictive measures were in place in employment tribunals, where secret evidence is also being used, and that, in its own dealings with issues related to terrorism, the Canadian government has “adopted a system which permits discussion between open representatives and special advocates on open matters.” At this point, Thomas de la Mare added that “in the United States, where I suppose the security concerns are every bit as great as in the United Kingdom, the system they have used, even in Guantánamo Bay, has been one in which open lawyers see all of the material and yet remain free to communicate with their clients.”

Gareth Peirce was also critical of Lord Carlile, noting that, even during the period of what she correctly described as “internment” — the period from December 2001, when suspects were imprisoned without charge or trial, mainly in Belmarsh, until the Law Lords ruled in December 2004 that this was in contravention of the Human Rights Act, and control orders were introduced — “Lord Carlile had stated, ‘I have seen everything that is in the secret evidence, I am completely satisfied the Home Secretary appropriately certificated the individual,’ even in cases where SIAC itself came to an opposite view, in cases where ultimately the House of Lords condemned the process twice, where the European Court said, ‘This was utterly inadequate information.’” She added that Lord Carlile’s regularly repeated position “gives a further veneer to the Government’s — in our view — exercise of arbitrary measures.”

There are many more worthwhile comments and exchanges in the transcripts, and what struck me in particular was Andrew Dismore’s reflection on the significance of the fact that, in two cases when the Home Secretary had decided to drop the control orders rather than provide any evidence, “it begs the question of whether the control order was necessary in the first place.” I have been stating for some time that this is enormously significant, and that what it reveals is that the government, when pushed, has been forced to reveal that senior officials have come up with a sliding scale of significance for men who were all routinely described as “dangerous terrorists,” and I was pleased to note that it was picked up by the Committee’s Chair.

In fact, the Committee in general seemed skeptical that the control order system was acceptable, especially after the Law Lords’ ruling — and the copious evidence that the government was trying to sidestep the full ramifications of the ruling — and immediately after the hearing, Andrew Dismore told the Guardian that Lord Carlile had “lost credibility,” explaining, “I think there is a risk of the perceptions of his independence being undermined, and that then undermines [his] credibility.” He added, “I think there ought to be a fixed term for his job.”

Whether Parliament will pick up on the Committee’s concerns — or will go no further than to take Lord Carlile’s report at face value — remains to be seen. Lord Carlile’s findings were presented to MPs on the day the report was published, and are due to be debated on March 1, with a vote following soon after. Since its introduction in 2005, the control order regime has only survived by being renewed annually by Parliament. Every year, there have been dissenting voices, but this year there must surely be more. Although Lord Carlile tried to claim in his report that “The control orders system functioned reasonably well in 2009, despite some challenging Court decisions,” this is clearly nonsense, and many MPs know it.

Take action against control orders

In the last ten months, 93 MPs have signed Diane Abbott’s Early Day Motion calling for an end to the use of secret evidence (which underpins both the control order regime, and the deportation cases of other “terror suspects” held without charge or trial). Please write to your MP if they signed up, asking them to vote against the renewal of control orders, and if they have not signed up for Diane Abbott’s EDM, ask them to do so, and also ask them to vote against the renewal of control orders.

Liberty has launched a campaign to put pressure on MPs in the run-up to the vote. You can sign a petition here, lobby your MP here, and download a letter to send to Home Secretary Alan Johnson on this page.

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.