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Control orders renewal debate: A temporary measure with no end?

As the Law Lords today (2 March) consider a challenge to the lawfulness of Control orders, and the annual renewal of the Control order regime goes through parliament tomorrow, Amnesty International is calling for a comprehensive rethink of the system and a full review of all alternatives. Control orders do not offer an acceptable alternative to charging people and putting them on trial, says Amnesty, and warns that they are a flawed and supposedly-temporary measure that risks becoming permanent.

Amnesty International is urging MPs not to renew the section of the Prevention of Terrorism Act 2005 (PTA) behind Control orders. Amnesty believes that if there is evidence that someone has committed a crime, they should be charged with a recognisably criminal offence and given a fair trial, with full access to all the evidence against them.

Amnesty International UK Director Kate Allen said:

“Four years after the Control order regime was introduced, supposedly as a temporary measure, there is no sign of it going away.

“We need a comprehensive rethink of the system and a full review of all the alternatives.

“Control orders provide only an illusion of justice. They effectively allow the government to punish people indefinitely on the basis of secret information that they’re not allowed to see or challenge in court.

“Control orders are an affront to human rights and the rule of law. If there is evidence that someone has committed a crime, they should be charged with a criminal offence and put on trial, not locked in their home on the basis of secret intelligence.

“Of course the government must protect the public from the threat of terrorist attacks. But its response to this threat has been to strip people of their most basic rights.”

The PTA grants ministers sweeping powers to subject people to Control Orders. These impose unacceptable restrictions on fundamental freedoms guaranteed under domestic and international human rights law in the UK, including the rights to freedom of assembly, association, movement, and expression, the right to a fair trial and the right to liberty.

It gives the executive the power to subject UK and foreign nationals to control orders for an indefinite period of time, effectively imposing on them a criminal punishment without charge or trial, on the basis of secret intelligence that is never disclosed to them.

The PTA and the Control order regime was criticised last week by parliament’s Joint Committee on Human Rights (JCHR), which said:

“We continue to have very serious concerns about the human rights compatibility of both the control orders regime itself and its operation in practice. We remain concerned that it will continue to result in breaches of both the right to liberty and the right to a fair hearing. Moreover, with every annual renewal, we grow more concerned about the length of time for which a number of individuals have been the subject of control orders.”

Both the JCHR and Lord Carlile, the government’s independent reviewer of counter-terrorism policy, have raised serious concerns about the length of time that some people have been subjected to Control orders and the danger that the measures will last indefinitely. Both have called for a statutory presumption against a Control order being extended beyond two years and the JCHR urges in its recent report that: “…there ought to be a maximum limit on the duration of a control order, and that Parliament ought to debate what that limit should be.”

The Prevention of Terrorism Act 2005 was introduced in response to the 2004 judgement of the House of Lords that the powers to detain foreign nationals suspected of involvement in terrorism under Part 4 of the Anti terrorism, Crime and Security Act 2001 (ATCSA) were disproportionate and discriminatory in breach of the European Convention on Human Rights (ECHR) and Human Rights Act (HRA).

In practice, Control Orders are based on secret intelligence presented by the executive to the judiciary. This means that the individual is not given the opportunity to see or hear the evidence, which leaves them unable to effectively challenge it. Amnesty International is also concerned about the system of Special Advocates, whom the authorities claim are appointed to “represent the interest” of the person concerned, but who are not actually instructed by them. A Special Advocate cannot provide a proper defence, as they cannot take instructions from the person they are supposed to represent once they are made party to secret intelligence.

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