Section 14(1) of the Prevention of Terrorism Act 2005 (the 2005 Act) requires the Secretary of State to report to Parliament as soon as reasonably practicable after the end of every relevant three-month period on the exercise of the control order powers during that period.
The level of information provided will always be subject to slight variations based on operational advice.
The control order regime
In the 16 September 2009 quarterly report to Parliament on control orders, my right hon. Friend the Secretary of State for the Home Department made clear that he considered that the control order regime remained viable following the June 2009 House of Lords judgment in AF & Others, but intended to keep that assessment under review as cases were considered by the courts. The High Court has upheld four control orders since the House of Lords judgment, following court proceedings that were compliant with the article 6 test laid down in AF & Others. The Government therefore remain of the view that the regime remains viable. The Government’s position was set out in greater detail in their memorandum to the Home Affairs Committee on post-legislative scrutiny of the Prevention of Terrorism Act 2005 (Cm 7797), which was laid before Parliament on 1 February.
My right hon. Friend the Secretary of State for the Home Department also asked the independent reviewer of terrorism legislation, Lord Carlile, to consider in his fifth annual report on the operation of the 2005 Act the continuing viability of the control order regime in the light of AF & Others. I welcome the conclusion of Lord Carlile in that report, which was laid before Parliament on 1 February
“that abandoning the control orders system entirely would have a damaging effect on national security. There is no better means of dealing with the serious and continuing risk posed by some individuals.”
Lord Carlile emphasises that in reaching this conclusion he has
“considered the effects of the court decisions on disclosure. I do not consider that their effect is to make control orders impossible”.
Lord Carlile’s conclusion supports our view that control orders continue to be an important tool to protect the public from the risk of terrorism where individuals who we suspect of involvement in terrorism-related activity cannot be prosecuted or deported.
The powers in the 2005 Act have now been renewed by my right hon. Friend the Secretary of State for the Home Department for a further year from 11 March 2010, after both Houses of Parliament supported its renewal.
The exercise of the control order powers in the last quarter
As explained in previous quarterly statements on control orders, control order obligations are tailored to the individual concerned and are based on the terrorism-related risk that individual poses. Each control order is kept under regular review to ensure that obligations remain necessary and proportionate. The Home Office continues to hold control order review groups (CORGs) every quarter, with representation from law enforcement and intelligence agencies, to keep the obligations in every control order under regular and formal review and to facilitate a review of appropriate exit strategies. During this reporting period, no CORGs were held in relation to the orders currently in force. This is because meetings were held just before, and are due to be held just after, this reporting period. Other meetings were held on an ad hoc basis as specific issues arose.
During the period 11 December 2009 to 10 March 2010, one non-derogating control order has been made and served. No control orders have been renewed in accordance with section 2(6) of the 2005 Act in this reporting period. In this reporting period there have been two revocations of control orders that were in force. Neither control order was revoked because it was not possible to meet the disclosure test set out in the House of Lords judgment in AF & Others. The Secretary of State revoked one control order because it was no longer considered necessary, and was directed by the court to revoke another on the basis that the court considered that the order was no longer necessary.
In total, 11 control orders are currently in force, 10 of which are in respect of British citizens. All of these control orders are non-derogating. Six individuals subject to a control order live in the Metropolitan Police Service area; the remaining individuals live in other police force areas. Two individuals have been charged with breaching their control order obligations; no criminal proceedings for breach of a control order were concluded during this reporting period.
During this reporting period, 44 modifications of control order obligations were made; 13 requests to modify control order obligations were refused.
Section 10(1) of the 2005 Act provides a right of appeal against a decision by the Secretary of State to renew a non-derogating control order or to modify an obligation imposed by a non-derogating control order without consent. One appeal under section 10(1) of the 2005 Act has been lodged with the High Court during this reporting period. A right of appeal is also provided for by section 10(3) of the 2005 Act against decisions by the Secretary of State to refuse a request by a controlled person to revoke their order and/or to modify any obligation under the order. During this reporting period two appeals have been lodged with the High Court under section 10(3) of the 2005 Act.
Judgments have been handed down in relation to five control orders in substantive judicial review proceedings under section 3(10) of the 2005 Act during this reporting period. Four of these control orders have been upheld by the courts. The five judgments are these:
Judgment was handed down by the High Court in Secretary of State for the Home Department v. BG & BH on 15 December 2009. Both control orders were upheld. No further detail can be given for legal reasons.
Judgment was handed down in Secretary of State for the Home Department v. AM on 21 December 2009. The High Court upheld this control order as necessary and proportionate, finding that there was overwhelming evidence of AM’s past involvement in terrorism-related activity and his future intentions. AM sought permission to appeal against this judgment on various grounds and permission has been granted.
In Secretary of State for the Home Department v. Al-Saadi, also handed down on 21 December 2009, the High Court found that while it was necessary for him to be placed on a control order when it was initially imposed, it was no longer necessary. The court directed the Secretary of State to revoke the control order.
Judgment in Secretary of State for the Home Department v. BM was handed down on 16 February 2010. The control order was upheld by the court on the grounds that there are reasonable grounds for suspecting that BM is or has been involved in terrorism-related activity and that the imposition of a control order on him is necessary for purposes connected with protecting the public from a risk of terrorism.
A judgment was handed down on 18 January 2010 in the case Secretary of State for the Home Department v. AE & AF. This determined two preliminary issues: whether in circumstances where the requirements of article 6 of the ECHR compel the Secretary of State to withdraw the material relied upon in support of a control order such that the order cannot be maintained, the court should quash the control order or direct revocation; and whether the disclosure requirements identified in AF & Others apply where the Secretary of State wishes to rely upon closed material to defend against a claim for damages by a controlled person. The court found that in these circumstances the order should be quashed and that the requirements in AF & Others does apply, although the judge commented that it did not follow that the controlled individuals would automatically succeed on liability on all claims against the Secretary of State, and that even if they did recover any damages, the level of compensation payable was likely to be low. The Secretary of State is appealing against the judgment.
In addition to the appeals to the Court of Appeal mentioned above, one further individual subject to a control order has applied for, and been granted, permission to appeal to the Court of Appeal. One individual has been granted permission to appeal to the Supreme Court.
Most full judgments are available at http://www.bailii.org/.