Control order
Encyclopedia
A control order is an order made by the Home Secretary
of the United Kingdom
to restrict an individual's liberty for the purpose of "protecting members of the public from a risk of terrorism". Its definition and power were provided by Parliament in the Prevention of Terrorism Act 2005
. Control orders were also included in the Australian Anti-Terrorism Act 2005
.
The control orders section of the Prevention of Terrorism Act provides for extremely limited rights of appeal and the absence of double jeopardy
restrictions (i.e. if a recipient managed to win an appeal in the Court of Appeal or other tribunal - the Home Office could simply re-apply the same order again). This has led to many court rulings highly critical of the orders.
In short, it provides for a graduated scale of technological "prisons without bars" that are intended to work within the European Convention on Human Rights
.
When the control order crosses the line and "deprives liberty", rather than "restricts liberty", it is called a derogating control order because it infringes Article 5 of the ECHR. This can only happen if there is a derogation according to Article 15, and the Home Secretary
must apply to a court for the authority. Derogation is only allowed when there is a "war or other public emergency threatening the life of the nation".
The ECHR states that the government cannot deprive any person of their liberty without due process of law. This process must include informing the person of the accusation against him, giving him access to legal assistance to prepare his defence, and giving him the right to have his case heard and decided in public before a competent court.
The government has claimed that the terrorist allegations against certain individuals are of such a nature and from such sources that they cannot be prosecuted "because that would mean revealing sensitive and dangerous intelligence".
. The ten detainees of the Part 4 of the Anti-terrorism, Crime and Security Act 2001 were released from Belmarsh and were immediately subject to control orders.
On March 24 2005, one of the men, Abu Rideh, gave a newspaper interview where he denied having any connection with terrorism, and was able to outline the contents of his order.
On April 16 2005, it was reported that all 10 control orders had been printed with the same reason, connecting individuals with the Wood Green "ricin plot"
. It was blamed on a "clerical error".
On 23rd May 2011, following a Government Review of Counter-Terrorism and Security Measures published in January 2011, the Home Office announced the scheme intended to replace the control orders - Terrorism Prevention and Investigation Measures. Although intended to be more flexible and to focus more on the investigation of the individual suspected of terrorism-related activity with increased judicial oversight, they have been dubbed as mere re-brandings of control orders.
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
to restrict an individual's liberty for the purpose of "protecting members of the public from a risk of terrorism". Its definition and power were provided by Parliament in the Prevention of Terrorism Act 2005
Prevention of Terrorism Act 2005
The Prevention of Terrorism Act 2005 is an Act of the Parliament of the United Kingdom, intended to deal with the Law Lords' ruling of 16 December 2004 that the detention without trial of eight foreigners at HM Prison Belmarsh under Part 4 of the Anti-terrorism, Crime and Security Act 2001...
. Control orders were also included in the Australian Anti-Terrorism Act 2005
Australian Anti-Terrorism Act 2005
The Anti-Terrorism Act 2005 is legislation intended to hamper the activities of any potential terrorists in Australia. It was passed by the Commonwealth Parliament on 6 December 2005.- Chronology :...
.
The control orders section of the Prevention of Terrorism Act provides for extremely limited rights of appeal and the absence of double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
restrictions (i.e. if a recipient managed to win an appeal in the Court of Appeal or other tribunal - the Home Office could simply re-apply the same order again). This has led to many court rulings highly critical of the orders.
Powers
The list of possible restrictions and obligations that can be included in a control order is long. It can place restrictions on what the person can use or possess, his place of work, place of residence, whom he speaks to, and where he can travel. Furthermore, the person can be ordered to surrender his passport, let the police visit his home at any time, report to officials at a specific time and place, and allow himself to be electronically tagged so his movements can be tracked.In short, it provides for a graduated scale of technological "prisons without bars" that are intended to work within the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
.
When the control order crosses the line and "deprives liberty", rather than "restricts liberty", it is called a derogating control order because it infringes Article 5 of the ECHR. This can only happen if there is a derogation according to Article 15, and the Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
must apply to a court for the authority. Derogation is only allowed when there is a "war or other public emergency threatening the life of the nation".
The ECHR states that the government cannot deprive any person of their liberty without due process of law. This process must include informing the person of the accusation against him, giving him access to legal assistance to prepare his defence, and giving him the right to have his case heard and decided in public before a competent court.
The government has claimed that the terrorist allegations against certain individuals are of such a nature and from such sources that they cannot be prosecuted "because that would mean revealing sensitive and dangerous intelligence".
List of restrictions
- Possession and/or use of specified objects and substances.
- Use of specified services and/or facilities.
- Certain occupations and employment.
- Carrying out specified activities.
- Restriction on association and communications with specified people, or people in general.
- Restriction of place of residence, and visitors to the residence.
- Movements at certain times of the day, or to certain places.
- Passport must be surrendered.
- A requirement to admit specified persons to certain premises.
- A requirement to allow specified persons to confiscate and/or scientifically examine any object on premises owned by the subject.
- A requirement to allow electronic surveillance to be carried out and photographs taken.
- Any other restrictions whatsoever for up to 24hrs, when it is deemed necessary.
History
The power to make control orders was voted through Parliament on the evening of 11 March 2005 after a famously long session of Parliamentary ping-pongParliamentary ping-pong
Parliamentary ping-pong is a phrase used to describe a phenomenon in the Parliament of the United Kingdom, in which legislation appears to rapidly bounce back and forth between the two chambers like a ping-pong ball bounces between the players in a game of table tennis.- Procedure :The British...
. The ten detainees of the Part 4 of the Anti-terrorism, Crime and Security Act 2001 were released from Belmarsh and were immediately subject to control orders.
On March 24 2005, one of the men, Abu Rideh, gave a newspaper interview where he denied having any connection with terrorism, and was able to outline the contents of his order.
- He is not allowed to make arrangements to meet anybody, but he can meet them if he does so unannounced
- He cannot attend any pre-arranged meetings or gatherings, but was present at the anti-war demonstration at Hyde Park last Saturday. He says he stumbled across it while playing football in the park with his children;
- He is banned from having visitors to his home unless they are vetted in advance, but he is allowed to arrange to attend group prayers at a mosque;
On April 16 2005, it was reported that all 10 control orders had been printed with the same reason, connecting individuals with the Wood Green "ricin plot"
Wood Green ricin plot
The Wood Green ricin plot was a 2002 alleged bioterrorism plot to attack the London Underground with ricin poison. The planned attack had connections with al-Qaeda...
. It was blamed on a "clerical error".
On 23rd May 2011, following a Government Review of Counter-Terrorism and Security Measures published in January 2011, the Home Office announced the scheme intended to replace the control orders - Terrorism Prevention and Investigation Measures. Although intended to be more flexible and to focus more on the investigation of the individual suspected of terrorism-related activity with increased judicial oversight, they have been dubbed as mere re-brandings of control orders.
Timeline of ministerial statements and legal challenges
Section 14 requires the Home Secretary to make a statement to Parliament every three months reporting about his exercise of the control order powers.- 11 March 2005 - The act came into force and 11 orders were in place, all against former Belmarsh prisoners who had been held under the previous Anti-terrorism regime.
- 16 June 2005 - Nothing had changed, except 3 of the orders were varied to take account of change of address.
- 10 October 2005 - 9 orders had been revoked, one new one in made against a British national. Therefore there were 3 in operation.
- 12 December 2005 - 5 new orders made, making the total 8.
- 15 February 2006 - both the House of Commons and the House of Lords agreed to renew the legislation on the terms of the sunset clause.
- 13 March 2006 - 11 control orders were in place, 3 of which were on British nationals.
- 12 April 2006 - A court ruled that the review procedure for the control orders was not compatible with Article 6 of ECHR (Right to a fair hearing), however the then Home SecretaryHome SecretaryThe Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
Charles ClarkeCharles ClarkeCharles Rodway Clarke is a British Labour Party politician, who was the Member of Parliament for Norwich South from 1997 until 2010, and served as Home Secretary from December 2004 until May 2006.-Early life:...
was undeterred in his stance on Control Orders.
- 12 June 2006 - 14 control orders in force, 5 on British nationals.
- 29 June 2006 - a High CourtHigh Court of JusticeThe High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
judge nullified six of these orders as being incompatible with the ECHR, saying: "I am left in no doubt whatsoever that the cumulative effect of the order has been to deprive to respondents of their liberty, in breach of article 5. I do not consider that this is a borderline case."
- 11 September 2006 - 9 new orders were made; 2 were against British citizens on 19 June and 5 September, the rest against foreign nationals, one on 31 July and the other 6 on 1 August. There were now 15 orders in force, 6 of which are against British citizens.
- 16 October 2006 - the Home OfficeHome OfficeThe Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
revealed that two men who are subject to control orders had absconded and were on the run. One suspect had escaped some months previously and the second had gone missing in the last two weeks, but authorities had kept these security breaches out of the public domain until this date.
- 17 November 2006 - Lord Carlile made his first annual review of control orders and recommended that more information be included in the ministerial statements.
- 11 December 2006 - 16 control orders were in force, 7 on British nationals.
- 31 October 2007 - House of Lords rules on three cases involving control orders. They ruled that 18 hour curfews are a deprivation of liberty but that 12 and 14 hour curfews are acceptable.
- 11 September 2007 - 9 new orders were made; 2 were against British citizens on 19 June and 5 September - 14 control orders in force, 8 in respect of British citizens. There were 3 absconders.
- 21 February 2008 - Parliament renewed the Act for another year
- 3 March 2009 - Parliament approved again for another year.
- 10 June 2009 - In the case of Secretary of State for the Home Department v AF and another (2009) UKHL 28, the House of Lords rules 9-0 that sufficient detail of the allegations must be disclosed to suspects to enable them to give effective instructions to the special advocates representing them.
External links
- Text of the Terrorism Act
- First House of Commons debate on control orders
- BBC News - Jihadi diary: Inside the mind 14/06/07 - the diary of Zeeshan Anis SiddiquiZeeshan Anis SiddiquiZeeshan Siddiqui is a citizen of the United Kingdom, who was apprehended in Pakistan after he fell under suspicion of being associated with terrorism.Prior to his travel to Pakistan Zeeshan worked for London's Underground -- its rapid transit system....
, a British jihadi who escaped his control order - BBC News article explaining Control Orders
- Clive Walker, 'Keeping control of terrorists without losing control of constitutionalism' (2007) 59 Stanford Law Review 1395-1463
- JUSTICE report on Secret Evidence (June 2009)