My right honourable friend the Secretary of State for the Home Department (Alan Johnson) has made the following Written Ministerial Statement.
Section 14(1) of the Prevention of Terrorism Act 2005 (the 2005 Act) requires me 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 control order regime
I would first like to report to Parliament on the future direction of the control order regime in the light of the House of Lords judgment in the case of AF & Others. That judgment ruled that individuals subject to control orders must be given sufficient disclosure about the case against them to enable them to give effective instructions to their legal representatives.
As the Government have made clear on numerous occasions, when dealing with suspected terrorists prosecution is—and will continue to be—our preferred approach. Where we cannot prosecute, and the individual concerned is a foreign national, we look to detain and then deport them. For those we cannot either prosecute or deport, our assessment has been that control orders are the best available disruptive tool for managing the risk they pose.
We have reviewed that assessment in the light of the House of Lords’ judgment in AF & Others. This has included a review of the impact of the judgment on the very small number of current control order cases. This has been in addition to the regular reviews that take place of the ongoing necessity and proportionality of each control order.
So far only one control order has been revoked and not replaced by a new one as a result of the judgment. That is the order against AF.
As I have made clear where the disclosure required by the court cannot be made for the protection of the public interest, including our national security, we may be forced to revoke control orders even where we consider those orders to be necessary to protect the public from a risk of terrorism. In such circumstances we will take all steps necessary to protect the public. The police and security service seek to investigate and monitor the activities of those believed to pose a threat to national security.
In some cases, as in that of AF, I will face difficult choices as to how best to protect the public interest. I have to balance the importance of protecting the public from the risk of terrorism posed by the individual against the risk of disclosing sensitive material. Disclosing this material would reduce the Government’s ability to protect the public from a risk of terrorism and in some cases could put lives at risk. In the case of AF, I decided that the risks posed by disclosure were too great. However these decisions can only be made on a case by case basis.
In the case of AM, for example, I decided that the further disclosure that was ordered by the court could be made.
My current assessment is therefore that the control order regime remains viable following the House of Lords judgment and that the national security reasons for maintaining the regime have not changed. However as further control order cases are considered by the courts during the autumn I will be keeping this assessment under review.
In addition to this ongoing review within my Department, I have asked the independent reviewer of the Prevention of Terrorism Act 2005, Lord Carlile of Berriew QC, to review the impact of the House of Lords judgment and to advise me as to whether the assessment that the regime remains viable is right. I have asked him to advise on this question in his next annual report which will be published early next year. His report will very helpfully be informed by the High Court’s consideration of further control order cases over the coming months.
The operation of the control order powers in the last quarter
I would also like to report to Parliament on the operation of the control order powers over the last quarter. As stated in previous quarterly statements on control orders, the level of information provided will always be subject to slight variations based on operational advice. 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, four CORGs were held in relation to the orders currently in force. In addition, further meetings were held on an ad hoc basis as specific issues arose.
During the period 11 June 2009 to 10 September 2009, five control orders have been renewed in accordance with section 2(6) of the 2005 Act. Five control orders have been revoked. Only one of these five revocations, the case of AF, was as a direct result of the House of Lords judgment in AF & Others. In this case, I considered that the disclosure required by the court could not be made for the protection of the public interest. I therefore had no alternative but to take the difficult decision to revoke the control order, even though the assessment remained that the control order was necessary to protect the public. I have made clear that we take all steps necessary to protect the public.
In three of the other four cases I revoked the orders because I considered that they were no longer necessary because the orders had successfully disrupted the individual’s terrorism-related activities. In the remaining case the order was revoked because the individual is now subject to deportation proceedings.
One further control order against an individual was revoked following a court order. However in this case a new order was made and served in its place.
In total, 15 control orders are currently in force, nine of which are in respect of British citizens. Seven individuals subject to a control order live in the metropolitan police service area; the remaining individuals live in other police force areas. All of these control orders are non-derogating. No prosecutions for breaching a control order were completed during this reporting period.
During this reporting period, 125 modifications of control order obligations were made, 49 requests to modify control order obligations were refused.
A right of appeal is provided for by section 10(1) of the 2005 Act 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 such appeal 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. Two appeals have been lodged with the High Court by controlled persons relating to refusal to modify a control order during this reporting period.
Two judgments were handed down by the High Court during this reporting period in relation to the full judicial review of a control order under section 3(10) of the 2005 Act. An interlocutory judgment was handed down in Secretary of State for the Home Department v. AM in closed only on 9 July 2009. The Secretary of State was ordered to make further disclosure in order to ensure compliance with article 6 (right to a fair trial) of the European Convention on Human Rights (ECHR) despite the court’s acknowledgment that the disclosure ordered is contrary to the public interest. The Secretary of State decided to make the disclosure ordered in order to maintain the control order in force. A substantive judgment in the case is expected in the next reporting period.
In Secretary of State for the Home Department v. AN, the court ordered the Secretary of State to revoke the control order in a judgment handed down on 31 July 2009. This followed the decision of the Secretary of State to withdraw reliance on a part of the case against AN due to the damage that would be done to the public interest if such disclosure was made. (The court ordered disclosure of this part of the case in a closed judgment of 29 February 2008 but the effect of the court order was stayed until the hand down of the June 2009 House of Lords judgment.) The Secretary of State argued that the control order against AN could be maintained on the basis of the remainder of the case. However, the judge considered that the material withdrawn represented the essence of the case as it was put to the Secretary of State when the control order was originally made and that as the decision to make an order had been based on grounds the core of which could not now be relied upon, the decision must be flawed. However, the court found that the order was properly made and renewed and therefore the appropriate remedy was to order the Secretary of State to revoke the order rather than to quash it. The court indicated that the Secretary of State was free to decide whether or not to apply for permission to make a new control order on the basis of the remaining material. The Government have subsequently made such an order with the court’s permission. AN has lodged an application for permission to appeal against the court’s judgment of 31 July 2009.
Two judgments were handed down by the High Court in relation to modification appeals under section 10(1) of the 2005 Act during this reporting period. In Secretary of State for the Home Department v. BM, judgment was handed down on 3 July 2009. BM appealed against the decision of the Secretary of State to relocate him to a different town as part of a package of obligations designed to protect the public from a risk of terrorism. The court concluded that although it would have upheld the modification on the basis of the closed material, further disclosure of the closed reasons for the relocation was necessary to comply with article 6 of the ECHR. The Secretary of State decided not to make any further disclosure owing to the damage to the public interest that this would cause. The judge therefore directed the Secretary of State to revoke the modification. In Secretary of State for the Home Department v. BF a closed oral judgment was handed down at the hearing on 17 June 2009. The court directed the Secretary of State to modify BF’s control order to require him to live at the residence in which he lived before his control order was modified to require him to live in a different town on the basis that the modification was not necessary.
Two judgments were handed down by the High Court during this reporting period in relation to modification appeals under section 10(3) of the 2005 Act. In Secretary of State for the Home Department v. AR, handed down on 15 July 2009, the court dismissed the appeal and upheld all the obligations subject to appeal as necessary and proportionate. AR has lodged an application for permission to appeal against the court’s judgment. In Secretary of State for the Home Department v. AN, an oral judgment was handed down at the hearing on 10 September 2009. On the basis of the open material the court found that the requirement on him to live outside London was not necessary and proportionate, but left it open to the Secretary of State to apply to rely on closed material in the case. The Secretary of State subsequently confirmed that he did not wish to apply for permission to rely on closed material in these proceedings.
During this reporting period two judgments were handed down by the Court of Appeal in relation to control orders. In Secretary of State for the Home Department v. AP, the Court of Appeal handed down judgment on 15 July 2009. It found by a majority of 2:1 that the High Court judge had erred in his decision in AP's case that the combination of a 16-hour curfew with an obligation requiring him to relocate to a different city breached article 5 (right to liberty) of the ECHR. In Secretary of State for the Home Department v. GG, the Court of Appeal handed down a unanimous judgment on 23 July 2009. It dismissed the Secretary of State’s appeal against a High Court ruling that the inclusion of an obligation in GG’s control order requiring him to submit to a search of his person within his residence was unlawful. The Court of Appeal found that section 1 (3) of the PTA cannot be read as allowing the inclusion of such an obligation.
Full judgments are available at: http://www.bailii.org/.