The House of Lords’ ruling on control orders is a victory for the campaign against secret evidence, but the ruling has yet to be applied to deportations and other areas.
On 10 June, an extraordinary legal odyssey culminated in nine judges at the House of Lords condemning as illegal the system of secret evidence underpinning control orders. The Lords affirmed that the subject of such orders must be given enough information to be able to respond, in accordance with basic principles of fairness.
The appellants, known by their initials, AE, AF and AN, are three young Muslim men (one British national, one Iraqi, one dual British/Libyan national) who in 2006 and 2007 were suspected by the Home Office of being involved in terrorism on the basis of trips they had made or sought to make to the Middle East. Each was made the subject of a control order. In some cases they were forced to move away from family and friends to a different town. All were made to wear electronic tags, to observe a curfew of up to 16 hours a day and, during their ‘free’ time, to remain within a clearly demarcated zone. All were subjected to severe reporting conditions, to a ban on the use of mobile phones or computers, and to tight restrictions on visitors and those they could meet outside their homes. Yet none was given details of what it was they were alleged to have done which would justify such draconian measures. They were subjected to the system of secret evidence whereby only a government-appointed Special Advocate saw the ‘closed’ evidence and could question the security services on it – but could not show it or discuss it with the suspected person. The government has ignored its anti-terrorism overseer Lord Carlile’s recommendation that control orders should never last for more than two years, and some men have been under a control order for over three years – including Mahmoud Abu Rideh, the stateless Palestinian refugee who was also held in Belmarsh prison for three years before internment was ruled illegal.
A legal battle against the use of the secret evidence resulted in a ruling by five House of Lords judges, led by Lord Bingham, in 2007, that the men’s control order hearings had to be fair. But the judgments disagreed with one another and were unclear about what this meant, and so the men, one of whom, AN, was by this time in Belmarsh prison on an allegation of breaching his control order, had to start the legal process all over again. Fortunately, in February 2009 the European Court of Human Rights denounced the use of secret evidence to justify detention, holding that national security detainees had to know enough of the allegation against them to be able to answer it. When the House of Lords came to hear the men’s appeal again, they were forced to follow the European Court’s lead. In fact, the Lords did not outlaw secret evidence, but secret allegations which they ruled out of bounds.
The Coalition Against Secret Evidence (CASE), a campaign set up in March 2009, welcomed the judgment, but pointed out that secret evidence is still used to justify deportation, and to refuse or revoke citizenship – situations where the European Court ruling has been held not to apply.
On the same day as the Lords’ judgment, the legal group JUSTICE published a major 241-page report describing the ways in which the use of secret evidence has spread over the past decade, and concludes that ‘secret evidence is unreliable, unfair, undemocratic, unnecessary and damaging to both national security and the integrity of Britain’s courts.’
Diane Abbott MP applauded the Lords’ ruling and called on the Prime Minister to begin his programme of democratic renewal ‘by reviewing the use of secret evidence and the whole control order regime’.
Download a copy of JUSTICE’s report (pdf file, 1.3mb)
Download a copy of the Lords’ judgement