Control orders are to linger on, the Home Secretary announced today. He was responding to a decision by the law lords in June that suspected terrorists who are the subject of “gag and tag” orders must be given sufficient disclosure about the case against them to enable them to give effective instructions to their legal representatives.
In a ministerial statement which I could not find anywhere on the Home Office website, Alan Johnson said that one control order had been revoked and not replaced as a result of the judgment. That involved a British-born Libyan known as AF.
Mr Johnson explained his reasoning:
I have to balance the importance of protecting the public from the risk of terrorism posed by the individual against the risk of disclosing sensitive material. Disclosing this material would reduce the Government’s ability to protect the public from a risk of terrorism and in some cases could put lives at risk. In the case of AF, I decided that the risks posed by disclosure were too great.
But in another case, about a man referred to as AM, the Home Secretary decided that the further disclosure required by the court could be made.
My current assessment is therefore that the control order regime remains viable following the House of Lords judgment and that the national security reasons for maintaining the regime have not changed. However as further control order cases are considered by the courts during the autumn I will be keeping this assessment under review.
Mr Johnson also asked for advice from Lord Carlile, the independent reviewer of the Prevention of Terrorism Act, on whether the control order regime remained viable. There’s no rush: Lord Carlile has been told not to report until early next year.
The Home Secretary has deliberately asked Lord Carlile the wrong question. We do not need to know whether control orders are viable; the answer is clearly “yes, if the law lords’ judgment is complied with”.
The question is surely whether control orders are justifiable. To this, as the campaign group Liberty argues, the answer is clearly “no”.
Shami Chakrabarti, Liberty’s director said: “The recent liquid bomb trials demonstrate how successfully British police and prosecutors can deal with terrorism within the rule of law.
“Instead of asking Home Office reviewers to be considering how many control orders they can get away with, Mr Johnson should be passing case files to independent prosecutors with a view to charging the guilty and freeing the innocent.”
Quite right. As I explain in my column for Thursday’s Law Society Gazette, the solution to this problem involves allowing intercepted communications to be used in evidence.
That would lead to further problems. But they must be overcome.