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Non-derogating Control Orders

The Bill proposes two forms of control orders: those that impose such a serious restriction on human rights that they would a require a fresh opt out (“derogation”) from article 5 of the European Convention on Human Rights (ECHR), referred to as “derogating control orders” (Clause 2) and those that impose restrictions not deemed to require a derogation, referred to as “non-derogating” control orders (Clause 1).

Non-derogation control orders may include curfews, electronic tagging, restrictions on the use of certain items (such as a computer), restriction on the use of certain communications (such as internet), limits on people with whom the individual may associate, and travel bans. Persons subject to such orders may be subject to significant restrictions on rights guaranteed by the ECHR, including freedom of expression under Article 10, freedom of association under Article 11, the right to privacy under Article 8, and freedom of movement (potentially restricting both the right to liberty under article 5 and the right to privacy and family life under article 8). Some orders could conceivably place restrictions affecting a person’s ability to work in his or her chosen field of employment or to attend services in his or her chosen place of worship.

In the view of Human Rights Watch, the serious restrictions on an individual’s human rights contemplated by the Bill, render the imposition of non-derogating orders functionally equivalent to the imposition of punishment upon the determination of a criminal charge. This view is reinforced by the fact that breach of a control order is a criminal offence punishable upon conviction by up to five years imprisonment and/or a fine (Clause 6 of the Bill).

The minimum due process requirements “in the determination of…civil rights or any criminal charge” in article 6 of the European Convention on Human Rights (ECHR) require a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” A fair trial also requires equality of arms between the parties, an adversarial process and the disclosure of evidence. Further requirements for those charged with a criminal offence under article 6 include the presumption of innocence and the right to an effective defence.² These requirements reflect long-standing principles of justice in the English common law.

The control order regime laid out in the Bill, however, lacks even the safeguards required in civil proceedings under human rights law. The Bill grants the power to the Executive to impose non-derogation control orders for an indefinite period of time on the basis of a low standard of proof and the use of secret evidence. The scope of the review by the courts of the making, renewal or modification of these orders is limited to the narrow grounds of challenge permitted under judicial review, and in at least part through closed proceedings from which the person subject to the order and his or her lawyer of choice are excluded.

Human Rights Watch has the following principal concerns with respect to the lack of procedural guarantees:

Criminal Sanctions Imposed by the Executive

The Bill grants the Home Secretary the power to impose non-derogating control orders. Secretary of State Clarke has called these orders “preventive”. They are not. Measures that may severely restrict movement, communication and association for an extended period amount to criminal sanctions. Such sanctions should be imposed only by a competent judicial authority in proceedings that apply the criminal standard of proof, and guarantee the presumption of innocence and the right to an effective defence.

Low Standard of Proof

In taking the decision to impose a non-derogating control order, the Secretary of State must only have “reasonable grounds” for suspecting involvement in terrorism-related activity and consider that the restrictions are necessary to protect the public from the risk of terrorism (Clause 1(1)). The standard of proof for imposing a derogating control order is the “balance of probabilities”, a higher standard used in civil law (Clause 2(1)1). Both standards fall far short of the “beyond a reasonable doubt” standard in criminal law.

Even if it were argued that some lesser restrictions envisioned by the Bill would not amount to a criminal penalty, it is worth noting that the approach of the House of Lords Judicial Committee to proceedings for the imposition of Anti-Social Behaviour Orders (ASBOs). ASBOs are restrictions on an individual based on prior conduct. The orders contain requirements prohibiting a person from specific anti-social acts and from entering defined areas.³ They are imposed for a minimum of two years and can include restrictions on association with named individuals and curfews. ASBOs are imposed by a magistrate upon application by local authorities and the police. Hearsay evidence is permitted. Breach of an order is a criminal offence.

In judgement of appeals in the cases of Clingham v. Kensington and Chelsea LBC and R. (McCann and others) v. Manchester Crown Court , the Law Lords ruled that although ASBO proceedings are essentially civil in nature, considering the seriousness of matters involved the criminal standard of proof – beyond a reasonable doubt – should be used.⁴

Insufficient Judicial Supervision

The scope of the judicial review of the imposition, renewal, or modification of a non-derogating control order is extremely narrow. It is not an appeal. The court is essentially called upon solely to determine whether or not the Home Secretary has acted within his powers. The court is not entitled to consider errors of fact or to substitute its findings for those of the Home Secretary. The review does not allow for full adversarial proceeding in which the evidence upon which the evidence was based may be properly tested (Clause 7, subsections 4-6).

At the time of this writing, the bill contains no timeline for court review of non-derogating control orders. Individuals subject to these orders may be forced to live under onerous restrictions on their liberty of movement, association, and communications for a considerable period of time before even the question of whether the order was ultra vires is considered.

Reliance on Secret Evidence

The Bill raises the prospect that control orders will be imposed on the basis of secret evidence which the person subject to the order cannot dispute. The Law Lords strongly criticised the use of secret evidence proceedings before the Special Immigration Appeals Commission (SIAC) in their December 2004 judgment. In the words of Lord Scott: “Indefinite imprisonment in consequence of a denunciation on grounds that are not disclosed and made by a person whose identity cannot be disclosed is the stuff of nightmares.” ⁵

The schedule to the Bill sets out provisions related to rules of court. It confirms what the Home Secretary indicated to the House of Commons when announcing the government’s plans on January 26—that the system for judicial review will allow for the use of secret evidence heard in closed proceedings from which the person subject to the order and his lawyer of choice will be excluded.

According to the schedule, the rules of court governing the orders may allow “control order proceedings or relevant appeal proceedings to take place without full particulars of the reasons for decisions to which the proceedings relate being given to a relevant party to the proceedings or his legal representative” and enable “the relevant court to conduct proceedings in the absence of any person, including a relevant party to the proceedings and his legal representative” (paragraph 4(2)). Furthermore, the rules must allow the Secretary of State to request the non-disclosure of relevant material and the court must consider this request in the absence of controlled person and legal representative (paragraph 4(3)). In other words, the Government may use secret evidence to substantiate its claim of “reasonable grounds” for a control order.

The system for considering secret evidence envisaged in the Bill replicates the Special Advocates system used in the SIAC. The schedule refers to “special representation” and states that a lawyer may be appointed to represent the interests of the controlled person in closed proceedings from which the controlled person and his legal representative are excluded (paragraph 7). The person appointed is “not responsible to the person whose interests he is appointed to represent.” As in SIAC proceedings, contact between the special advocate and the controlled person will be extremely limited once the proceedings begin. In particular, the special advocate will not be able to discuss the evidence or grounds for the decision with the concerned individual or take instructions from him.

The use of secret evidence in closed proceedings without the ability of the person subject to a control order to confront the evidence against him in person with assistance of counsel of his choice violates fundamental due process standards enshrined in human right treaties and the English common law. As with indefinite detention under the Anti-Terrorism Crime and Security Act 2001, a person subject to a control order might never know the basis of the Home Secretary’s “reasonable suspicion” against him, making any challenge to the lawfulness of the orders very difficult.

The use of secret evidence also raises the very real spectre that evidence obtained under torture may be adduced by the government to justify control orders, in whole or in part. The U.K. government asserts the right to rely on evidence obtained under torture from third countries in SIAC proceedings provided the U.K. was not involved in the torture, a position affirmed by a two-to-one majority in the Court of Appeal in August 2004.⁶ The government’s position on third country torture evidence breaches article 15 of the U.N. Convention on Torture and the absolute prohibition against torture in article 3 of the European Convention on Human Rights. The House of Lords Judicial Committee has given leave to appeal on the Court of Appeal judgment. But until the Law Lords issue a definitive ruling on the torture evidence or the U.K. government categorically rules out the use of evidence as a matter of legal obligation, there remains a real risk that torture evidence could be adduced as secret evidence in closed hearings to justify control orders.

Indefinite Renewal

Non-derogating control orders are imposed for twelve months but may be renewed an indefinite number of times (Clause 3(1)). The Secretary of State need only consider that a control order continues to be necessary to protect the public from the risk of terrorism and that the obligations imposed are those necessary for the purpose of preventing or restricting involvement of the individual in terrorism-related activity (Clause 3(3)).

Restrictions on liberty for those charged with a crime are subject to time limitations under international law. Under Article 5 of the European Convention on Human Rights, persons accused of a crime may be subject to deprivation of liberty but must be brought to trial within a “reasonable time.”⁷ Restrictions on liberty following conviction are not time-limited, but are imposed following a criminal trial subject to the full due process safeguards required by human rights law and domestic criminal law. By contrast, the restrictions imposed under a control order are not for a period pending trial, but are an alternative to it, renewable indefinitely, and without proper due process safeguards in place.