LAST WEEK the Home Secretary launched an appeal against the recent ruling by the High Court that control orders are unlawful. That ruling, given in respect of the first control order to be issued against a British citizen, was a damning indictment of a government that purports to be human-rights compliant. At least Mr Justice Sullivan allowed the Home Secretary a fair hearing before roundly rejecting all his arguments. That is more than the Home Secretary allowed my client, known as MB, at any stage of the process that condemned him to an indefinite control order.
Make no mistake about what the High Court decided. In March last year the Government passed legislation that permits the imposition of a control order on any person, whether British or foreign, whom the Home Secretary suspects of being a terrorist, which realistically gives the controlee and the court no chance of challenging or overturning it. With that finding in place, the only question left to consider was whether such power in the hands of the executive is either fair or necessary. There could be only one answer and it should not have taken a High Court judge to provide it.
The fact is that Parliament failed us in passing the Prevention of Terrorism Act. Too many MPs queued up to vote with the Government, taking on trust the Home Secretary?s assurances that there would be effective judicial scrutiny of his control order decisions. This was manifestly not true. Given the way the Act is drafted, court proceedings are a sham, because as the judge said: ?The Secretary of State is always going to win.? It was in this context that Mr Justice Sullivan declared that the Government had applied a ?thin veneer of legality? to executive action.
Consider all of this from the standpoint of MB. For more than six months, he has had to live and sleep each night at an address that he must give seven days? notice of to the authorities, report daily to a police station more than an hour away from his home, surrender his passport, not enter any international port and allow officers to search his home at any time of the day or night and remove any items they wish. Unsurprisingly, MB has done his level best to ensure that as few people as possible find out that he is subject to a control order because he can hardly expect them to be understanding about it.
So when his friends ask him where he goes when he disappears for three hours every afternoon, what should MB say? Should he lie? What makes it all particularly galling is that MB is being subject to all of this indefinitely on the basis of evidence that he cannot see, let alone challenge. Worryingly, breach of any of the obligations renders him liable to up to five years? imprisonment.
What is especially embarrassing about this judgment is that in December 2004, the House of Lords declared the predecessor to the Prevention of Terrorism Act to be in breach of essential human rights. The Anti-Terrorism Crime and Security Act 2001, under which the Belmarsh detainees were held for several years, was repealed and replaced with legislation that too has been found wanting. This is either an incompetent government or one determined to push the boundaries of executive power to ? and wherever it thinks it can get away with it, beyond ? the limit.
Let me present an alternative view. I consider that control orders are neither necessary nor desirable. I propose that any person in respect of whom there is no more than suspicion of involvement in terrorism should be watched closely by the police. Surely that isn?t too controversial, is it?
Ah, say some, what about where we have more than just a suspicion ? where there is strong evidence but it cannot be used in court. Simple. The police should watch that person very closely. Perhaps arrest him and question him for a reasonable time as a warning shot across the bows. Allow telephone intercept evidence to be used in courts. The Government cannot diminish its ability to prosecute some terrorist suspects and then claim special powers to affect us all on the basis that a handful of people cannot be prosecuted.
How useful are control orders? If my client really was a determined terrorist, he could quite easily obtain a false passport or other identification that would enable him to leave the UK for Iraq. And what effect do control orders have on Muslims? perception that they are being treated as second-class citizens? It is curious that control orders were never thought to be necessary or desirable when there was a threat of terrorism from the IRA, and no other country in the Western world seen fit to follow the UK?s example on this.
Control orders and the procedures by which they are made and ?challenged? are a stain on an apparently advanced society. They are, as Mr Justice Sullivan said, ?an affront to justice?. The Government would do well to abolish control orders without delay and restore the rule of law to its rightful place before immeasurable damage is done to people?s lives.
The author is a human rights solicitor specialising in terrorism cases at Arani & Co.