Background Briefing

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Derogating Control Orders

           

It is not for the executive to decide who should be locked up for any length of    time, let alone indefinitely. Only the courts can do that and, except as a preliminary step before trial, only after the grounds for detaining someone have been proved. Executive detention is the antithesis of the right to liberty and security of person. – Lady Hale, House of Lords Judicial Committee. 8

It was the unequivocal judgment of the Law Lords that the indefinite detention of foreign terrorism suspects breaches human rights law. The Law Lords struck down the order derogating from article 5 ECHR. Human Rights Watch finds it extraordinary that the Government now seeks to reserve the right to subject any person in U.K. whom it suspects of “terrorism” to house arrest. No matter that to exercise the power, the government would first have to obtain a new derogation from article 5, this is an indefensible attempt to reintroduce detention without trial.

The original draft of the Bill allowed the Executive to apply the criminal sanction of house arrest on the basis of secret evidence using the civil standard of proof (balance of probabilities) (Clause 2(1)). At the time of this writing, the proposals had been altered to allow for house arrest orders to be imposed by a judge, following an ex parte application within 24 or 48 hours of a request by the Home Secretary, with new police powers of arrest that would allow persons in respect of whom an application had been made to be placed in custody while the application was considered. The judge would have to be satisfied that there was a prima facie case.9

The proposed safeguards do not address the fundamental objection that a criminal sanction that amounts to a form of imprisonment can be imposed only through criminal proceedings with the due process safeguards required by domestic law and human rights law, involving a fair and adversarial hearing, in which the person subject to a potential deprivation of his liberty knows the case against him and in which the state must adduce evidence to satisfy the court “beyond a reasonable doubt.”

Initial decisions on house arrest are to be made in the absence of the person subject to the order and his legal representatives, on the basis of secret evidence which the person subject to the order cannot challenge, even at a subsequent review. The standard of proof remains lower than the criminal standard.

House arrest has disturbing implications for liberty. It dispenses with the presumption of innocence. It affects the liberty of those not subject to the order: family members living with a person subject to house arrest would inevitably face restrictions on their liberty, by virtue of living in what had become in effect a place of detention, even if they were not subject to formal restrictions. For those who live alone, house arrest will amount to solitary confinement. The example of South Africa demonstrates that the imposition of house arrest exposes those subject to the order to the risk of violence and intimidation in their own homes.10 

The Bill allows control orders, including house arrest, to be imposed on U.K. citizens as well as foreign nationals suspected of involvement in “terrorism” as defined in section 1 of the Terrorism Act 2000. The scope is therefore far wider than the indefinite detention powers under the ATCSA, which applied only to persons with links to al-Qaeda and related organisations, and could include for example, animal rights activists.

In February 2004, the Government had stated in a consultation paper on counter-terrorism powers that while “it would be possible to seek other powers to detain British citizens who may be involved in international terrorism it would be a very grave step. The Government believes that such draconian powers would be difficult to justify.”11 

Human Rights Watch shares the view of the Privy Counsellor Review Committee (“Newton Committee”) and Joint Committee on Human Rights that any new anti-terrorism legislation must be compatible with all of the United Kingdom’s human rights obligations without derogation.12



[8] A, X, and others [2004] UKHL 56, para. 222.

[9] The shift in the government’s position came in the form of a letter to the Shadow Home Secretary David Davis indicating that the Bill would be subject to amendment in the terms indicated when it reached the House of Lords. See, for example: Jon Smith and John Deane, “Clarke Makes Terror Law Concessions,” Press Association, February 28, 2005; Jenny Booth, “Government gives in over control orders,” The Times (London), February 28, 2005.

[10] See, for example, Eric Abraham, “House arrest scarred me for life, Mr. Clarke,” The Sunday Telegraph, February 27, 2005.

[11] Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society: A Discussion Paper (February 2004), para. 36 [online] www.homeoffice.gov.uk/docs3/CT_discussion_paper.pdf (retrieved February 27, 2005).

[12] Privy Counsellor Review Committee (“Newton Committee”), Anti-terrorism, Security and Crime Act 2001 Review: Report; Joint Committee on Human Rights, “Review of Counter-Terrorism Powers,” Eighteenth Report of Session 2003-4.


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