Five years of control orders

Frances Webber, human rights lawyer, examines Lord Carliles’ report on five years operation of the Prevention of Terrorism Act.

Next month sees the fifth anniversary of the control order regime, introduced in haste in March 2005 after the strategy of internment, which applied only to foreign terror suspects, was declared unlawful and discriminatory. Now, control orders too are discredited for their reliance on secret evidence and their devastating impact on those subjected to them.

The fact that there have been so few control orders in the five years of their operation – forty-four in total – gives the misleading impression that those controlled must be truly dangerous. But the small number of orders doesn’t necessarily mean that the intelligence behind them is accurate. After all, not many people were hanged for murder when the UK had capital punishment – but a significant proportion of those who were judicially murdered turn out to have been innocent. In the words of human rights lawyer Gareth Peirce, ‘This may affect only a small group of people but in terms of its contribution to what one might call the folklore of injustice it is colossal.’

Inimical to justice

The procedure for their imposition is inimical to justice. The Secretary of State has to apply to a High Court judge for permission to impose a control order – but the judge cannot refuse unless the order and the grounds for it are ‘obviously flawed’. This means that advance judicial scrutiny of the order is extremely limited. This process takes place in the absence of and without the knowledge of the person who is the subject of the order, and the first he knows of it (all the subjects have been male) is being arrested, served with the order, and frequently moved to a new location (a process described by Lord Onslow of the parliamentary Joint Committee on Human Rights as ‘internal exile’). Even when the controlled person can challenge the order, all the Secretary of State has to do to get the order upheld is to show that there are ‘reasonable grounds’ to suspect that the person may be involved in terrorist activity.

The panoply of restrictions to which a controlled person is generally subjected is by now well known (12-to 16-hour curfew, electronic tag round the ankle, geographical boundary, no unvetted visits, no internet or mobile phone access, reporting to police and to curfew monitor, frequent subjection to search of premises, etc – some twenty-five separate restrictions in all). Extraordinarily intrusive conditions which severely affect not just the men but their wives and children, preventing even midwives and district nurses from visiting without full Home Office vetting, their worst feature is their indefinite nature. Unlike conditions of bail, which apply until trial, these conditions apply indefinitely. They are imposed for a year at a time, but renewal tends to be automatic. And the huge delays in bringing legal challenges to court mean that a full review hearing rarely takes place within the first year of the order. The cases drag on, as legal points are litigated and appealed, and even success in the Supreme Court (formerly the House of Lords Judicial Committee) does not put an end to the orders – cases simply start again in the High Court. Litigation frequently takes years. And for all that time, the orders have been in place, and the controlled men need permission even to visit their lawyers. As Gareth Peirce told the Joint Committee, ‘There have been victories won in the courts but the interminable back and forth, back to the High Court after the House of Lords has decided in your favour, in the end breeds bleak cynicism, that whatever happens the goalposts will be moved.’

Many people thought control orders were finished after the House of Lords’ Judicial Committee blew a hole in the regime in June 2009 by reaffirming controlees’ absolute right to be given enough information about the allegations founding the order to be able to challenge them effectively. The government, however, isn’t going to let them go so easily. It has laid before Parliament an order seeking renewal of the legislation for a further year, and the Home Office has sought to justify the control order regime in a memorandum to the Home Affairs Committee on post-legislative scrutiny of the Act.

Lord Carlile’s review

In its efforts to save control orders, the government has the support of the ‘Independent reviewer’ Lord Carlile, who in his fifth annual report on the operation of control orders, covering their operation in 2009, says that nothing works quite so well for managing the risk of terrorism in Britain today. ‘The orders contribute to a tougher environment for putative terrorists’, he concludes, warning that, ‘In stark terms, the potential cost of losing control orders is that the UK would be more vulnerable to a successful terrorist attack’.

Of the forty-four people who have been subjected to control orders, there were just twelve under orders when he wrote his report. Three of them had been the subject of orders for over two years, one for over four years, and he tells us that ‘there is significant and credible intelligence that [the three] continue to present actual or potential, and significant danger to national security and public safety’. He agrees with the security services’ assessment of another controlee as ‘a dangerous terrorist who would re-engage with terrorism the moment he could’. Two other men are described as having been involved in ‘considerable terrorist planning and facilitation in the UK’ and remaining ‘active’.

We are not told about the men who are no longer subject to control orders, having had them withdrawn or quashed by the courts. They too were assessed as presenting significant dangers when their orders were imposed. In most cases, we – and they – will never know why. Was the original assessment flawed? We know that in one case, that of Cerie Bullivant, it appears to have been based on a drunken phone call by a friend of the young man’s mother (an informant whose reliability was apparently never queried). Bullivant went on trial for absconding from his control order (he gave himself up to police), and was acquitted after he told the jury how badly he was affected by it. Psychiatric evidence showed he had a severe depressive illness. Then, the control order itself was quashed – the judge held that the suspicions leading to its imposition were not reasonable. (Read an IRR News story: ‘Living under a control order’)

This rare glimpse into the evidence behind one control order must give rise to serious doubts about the quality of the intelligence behind others. But the secret evidence regime means that generally, we have no idea. Lifting the veil of secrecy could enable the necessity for control orders to be taken more seriously. It’s hard to accept that they are vital when we do not know why they’re made and when, perhaps even more significantly, why they are lifted.

Continuing secrecy

But the June 2009 ruling, that those controlled must know enough of the case against them to be able to answer it, has not led to more transparency. Special advocate Helen Mountfield told the Joint Committee that ‘the Home Office has taken quite a minimalist view, headline allegations only … if you are going to say somebody has undertaken terrorist training you need to tell them when and where, and that is not the level of detail, as I perceive it, that is being given at the moment.’ When the Home Office refuses to give more detail, judges can (and have) quashed control orders, since the Home Office can no longer rely on unspecified allegations. Secrecy is thus more important to the government than retaining control orders – which must raise a doubt as to how necessary the orders really are.

But even when people are told the specific allegations against them, the evidence supporting those allegations, and its sources, still remains largely secret, concealed from the controlled person, who is thus unable to correct misapprehensions or challenge witnesses’ credibility (or reliability). In most cases, the evidence is ‘a mosaic’ of little bits of information or intelligence. But the problem with a mosaic is that you can make any pattern from the pieces. And the security services are trained to see terrorist conspiracies everywhere in Muslim communities – so a person with ‘extremist’ acquaintances, who attends a mosque which has a radical imam, may well find himself targeted if he decides to go to a Muslim country to learn Arabic, study the Koran or work for a charity. The security services put these three features together and conclude that the real purpose of the travel is terrorist training.

A number of those on control orders – or awaiting deportation to torturing states under ‘deportation with assurances’ programmes – allege that action was taken against them when they refused to act as informers for MI5. Gareth Peirce referred the Joint Committee to this ‘coercive and improper use’ of such orders to put pressure on young Muslim men. This suggests that it is not the most dangerous men who are being targeted, but sometimes the most vulnerable.

Prosecution

If those on control orders really are, as Carlile portrays them, ‘very high risk, continuing and determined terrorists posing a real risk to national security and the public in the UK and abroad’, it seems incredible that they cannot be prosecuted. As Lord Carlile concedes, prosecution has got easier – some 250 people have been convicted of ‘terrorism-related’ offences since 9/11, new offences have been introduced in the Terrorism Act 2006 (preparation, training, and the infamous ‘glorification’ offences), and procedures have been modified to enable more prosecutions. (In fact, many of those prosecuted and convicted of ‘terrorist’ offences cannot realistically be said to pose a ‘real risk’ to anyone except themselves. Convictions under section 58 of the Terrorism Act, which criminalises ‘possession of an article likely to be useful for terrorism’, have been quashed on appeal. The self-styled ‘lyrical terrorist’ Samina Malik had her conviction quashed by the Court of Appeal after her graphic poetry put her in the dock, as did some who downloaded al-Qaida handbooks out of curiosity, or from other motives which did not involve wanting to emulate al-Qaida. Mohammed Atif Siddique likewise had his conviction under section 57 quashed by the Court of Appeal in Edinburgh in February 2010 after being sentenced to six years’ imprisonment in 2007 for downloading material from the internet.)

Carlile explains the legal and operational difficulties surrounding the use of intercept evidence in criminal trials, but says that even without those difficulties, prosecution just is not feasible in some cases; hence the need for control orders. But what is the assessment of the men as dangerous terrorists based on, if it is not based on evidence which, in some shape or form and subject to appropriate safeguards, can be presented to a court? The trouble is that Carlile cannot tell us. He cannot tell us why men he describes as determined terrorists could not and cannot be prosecuted – all he can say is that intercept evidence would not help.

Astronomical costs

In her oral evidence to the Joint Committee, Gareth Peirce pointed out that almost none of the controlled persons she represents had ever been questioned by the security services – which might go some way to explaining why they have not been prosecuted. She asked why the control order regime cannot be replaced by more surveillance of those deemed really dangerous – particularly if such a label applies only to a handful of people. Her questions deserve to be taken seriously, particularly in light of the revelation that over £8 million – about three-quarters of the total Home Office spend on the orders since 2006 – is attributable to legal costs. And as the chair of the Joint Committee pointed out, this does not include legal aid for those subject to control orders, which would effectively double the legal costs, nor does it include the cost of judges’ time in deciding control order cases. If these costs were added, it’s likely that total legal costs of the control order regime has exceeded £20 million. With a total of forty-four individuals ever on control order, each order has cost nearly half a million pounds in legal costs alone. (Compare this with the £656,500 spent by the Home Office over the same period for subsistence – which works out at £65 per week per controlled person.)

Clearly, the benefit of control orders, as against more surveillance, is that partial house arrest, travel and communications bans make surveillance and control a lot easier for the security services – at the expense of family life, private life and the mental health of controlees and their families. Carlile accepts the devastating effect on mental health and family life of those subjected to control orders, and has in previous years commented on the need to monitor this effectively. Two years ago, he expressed the view that there should be a recognised (and possibly statutory) presumption against a control order being extended beyond two years, save in genuinely exceptional circumstances. But the government rejected his recommendation.

Testing the effectiveness of orders

Carlile’s conclusion, then, was that control orders are still needed to plug the gap where neither prosecution nor deportation is possible: there is no viable alternative, he says. But how is the effectiveness of the orders tested? ‘The key test of … effectiveness … is whether control orders prevent or restrict controlled individuals from involvement in terrorism-related activity’, says the Home Office assessment, and judged by this criterion, Carlile believes they are effective. But of course, such an assessment takes for granted that but for the orders, the men would engage in such activity – and it is precisely this assumption that is impossible to challenge. It is a closed system, and if you are not in the know, you have to take it on trust. And with the experience of Binyam Mohamed and the Chilcot Inquiry fresh in our minds, taking it on trust is something most responsible and sane citizens would rather not have to do.

The Joint Committee on Human Rights, like the ‘independent reviewer’, annually reviews the control order regime, but from a human rights perspective. One member of the Joint Committee, Baroness Falkner of Margravine, expressed concern (according to the uncorrected minutes of evidence) that the independent reviewer might ‘go native’ after years of too close contact with the security services, and to avoid this danger, the post should have a fixed term. Her concern would not have been alleviated by Lord Carlile’s revelation in his report that, attending meetings of the Control Order Review Group (officials from the police, Home Office and security service) as an observer, he has ‘been able to contribute when matters of principle and relevance to the review process have arisen’.

The girl who shouts ‘fire’

Another problem with the control order regime, and with Lord Carlile’s review of it, is that nowhere does he question the government’s assessment that a ‘public emergency threatening the life of the nation’ exists in the UK. Most people would find such a view very difficult to accept, as we go about our business, working, shopping, engaging in community activities or watching TV at home. But it is a fact that the government still maintains this view, which enables it at any time (if it deems fit) to re-introduce internment (provided it does not discriminate on racial, religious or nationality grounds). Security, counter-terrorism, crime and policing minister David Hanson was quizzed by the Joint Committee in December 2009, and found himself unable to answer the point that, since it is decades since the terrorism risk was last assessed as ‘low’, the country is in a permanent state of public emergency threatening the life of the nation. Lord Onslow pointed out that ‘if you use hyperbole like that it is like the little girl who shouts “Fire” the whole time; it loses its meaning’.

Nor does Carlile ever question the fact that it is always and only Muslims who are deemed sufficiently threatening to be put on control orders, despite the government’s own counter-terrorism website referring to the threat from right-wing extremists.

In her evidence to the Joint Committee, Gareth Peirce called for a reviewing body that is ‘independent, maybe bringing in psychiatrists or social workers who have an extended understanding of social control’. Her assessment is that the control order system is ‘a very impoverished procedure for such a restriction on a person’s life’. It is, she believes, ‘on the rocks, but the Home Office clings to the wreckage’.