Home Office Press Releases

Reference: 034/2005 - Date: 22 Feb 2005 15:08

Anti-terrorism legislation setting out a system of control orders for suspected terrorists was published today by Home Secretary Charles Clarke.

The Prevention of Terrorism Bill gives the Home Secretary powers to make control orders with a range of conditions, including a ban on internet or mobile phone use, restrictions on movement and travel, restrictions on associations with named individuals, curfews and tagging.

The Home Secretary today stressed that prosecution remained the Government’s preferred way of dealing with suspected terrorists, but where this was not possible control orders would provide a valuable tool in disrupting and preventing terrorist-related activity.

The orders would be made by the Home Secretary, but would be subject to independent judicial oversight.

Key features include:

·        independent judicial scrutiny of decisions to impose control orders, including the hearing of evidence in open and closed session by the High Court, with the interests of the subject of the order represented by a special advocate in closed session;

·        breach of a control order would be a criminal offence – triable in the criminal courts and punishable by imprisonment;

·        regular reporting to Parliament on orders made; and

·        independent annual review of the powers.

The orders would apply to British and foreign nationals suspected of any terrorist-related activity. They would replace current powers to detain suspected foreign terror suspects under part 4 of the Anti-Terrorism Crime and Security Act 2001 (ATCSA), which the Law Lords concluded in their ruling last December were discriminatory and disproportionate on the grounds that they only applied to foreign nationals.

Mr Clarke said:

“ A careful balance has to be struck between the rights of individuals and the protection of society against threats from terrorists - who want  to destroy our society and the freedoms a democratic society cherishes, such as freedom of belief, speech, expression and a free press. These are the very things we have fought for over many generations.

“The threat we face remains real and serious, and I am in absolutely no doubt that there are terrorists at home and abroad who want to attack the UK and its interests.

“ I am grateful to the vigilance and professionalism of our security authorities and police for their brave and invaluable work in preventing the sort of terrorist attacks we have seen recently in other countries and their ongoing efforts to keep our country safe.”

The Home Secretary said it was important that people understood the scale and nature of the threat the UK faced and the Government’s strategy for countering the threat.

To assist the debate, a series of discussion papers have today been published.

“It is a Government’s ultimate responsibility to find a fair way of protecting its citizens from the ongoing threat; the rights we must balance belong to everyone.

“As Home Secretary, I am accountable to Parliament for the decisions I make and it is my prime responsibility to protect the country and everyone in it. This leaves me in no doubt that it is for me to decide, based on all the information available from the security and law enforcement agencies, whether to make control orders against certain individuals who pose a serious threat to our security.

“ Of course, our preferred approach in all cases will be to prosecute in court and I am currently considering how we might bring forward new legislation in the future to help us do this more effectively.

“While I will keep it under review, I do not, however, believe that allowing the use of intercept as evidence in courts is, for the time being, the answer. It will not help us prosecute more terrorists and there is no evidence to suggest intercept evidence leads to more terrorist convictions in countries where it is admissible in court.”

The legislation also makes provision for the Home Secretary to make control orders which would require someone to remain in a particular place at all times, if the threat to the UK changes. This would require a derogation from Article 5 of the ECHR.  A derogating order would be made and laid before Parliament. It would come into force immediately, but would need to be confirmed by both Houses, following a debate, within 40 days.

All control orders would be capable of being challenged in the High Court. Derogating control orders, because of the seriousness of the issues they raise, will be subject to enhanced judicial scrutiny in the High Court.

Mr Clarke said:

“Following close consultation with the security service and police, I am proposing control orders with conditions up to, but not including, a requirement to remain in a particular place at all times as a proportionate response to current threat.

“But I am only too aware that circumstances can change quickly and so have included enabling provisions in the Bill which would allow me to impose such conditions immediately were the threat to change and the powers needed to safeguard national security.

“I have considered the Law Lords’ judgement in relation to the current legislation and responded by ensuring that the new measures apply equally to UK and non UK nationals.”

Notes to Editors:

1.      The Prevention of Terrorism Bill was published today and is available at www.parliament.uk

2.      The new legislation is in response to the House of Lords Judicial Committee’s judgement on the compatibility of the part 4 powers with the ECHR on 16 December 2004. The Law Lords quashed the Human Rights 1998 (Designated Derogation) Order 2001 and declared section 23 of the Anti-Terrorism Crime and Security Act incompatible with Article 5 (right to liberty) and 14 (freedom from discrimination) of the ECHR on the grounds that the legislation related to foreign nationals only. 

3.      A written ministerial statement setting out the Government’s formal response to Lord Carlile’s annual review of the use of part 4 powers under the Anti-Terrorism Crime and Security Act 2001 was laid in Parliament today. The report is available at www.homeoffice.gov.uk

4.      Part 4 of that Act provides for the Home Secretary to detain suspected international terrorists, pending deportation, who cannot be returned to their own countries as a result of our obligations under international treaties.

5.      A total of 17 individuals have been certified and detained under the powers.  There are currently 10 individuals certified and detained under the Act. One other has been certified, but is detained under other powers and one remains certified, but held under strict bail conditions. Two detainees have previously chosen to leave the country, which they are free to do at any time, two have had their certificates revoked and one was successful at appeal.

6.      The Home Secretary has today published a series of discussion papers, setting out the nature of the threat we face and the Government response. They are available at http://www.homeoffice.gov.uk/terrorism/govprotect/legislation/background.html

Control orders

7.      Control orders will be capable of general application to any suspected terrorist irrespective of nationality or, for most of the controls, the nature of the terrorist activity (international or domestic) and enable the imposition  of conditions preventing or restricting the ability of those subject to the orders to engage in terrorist related activities.

8.      The controls imposed would be proportionate to the threat each individual posed. Such orders would be preventative – designed to disrupt those seeking to carry out attacks whether here or elsewhere or who are planning or otherwise supporting such activities. They would be designed directly to address two of the Law Lords’ concerns – on discrimination and proportionality.

9.      Control orders would be used in those cases where an individual poses a threat but cannot be prosecuted either because the evidence is not admissible in criminal proceedings or it cannot be used for fear of revealing and endangering sources and techniques.

10.    Control orders would be time limited to 12 months duration (six months for derogating control orders), but capable of being renewed (or remade in the case of derogating control orders), if the threat posed by an individual continued to warrant it.

11.    The controls would not include detention in prison, but a breach of an order without prior consent from a specified person would be a criminal offence triable through the criminal courts and punishable by imprisonment or a fine or both.

12.    The Bill would enable the Home Secretary to impose conditions which are incompatible with Article 5 of ECHR (such as requiring an individual to remain at a specified location at all times) if, and only if, he is satisfied that the imposition of the condition on that person is strictly required for the purposes of protecting the public from the risks arising out of, or associated with, a public emergency. Such a derogation from Article 5 of ECHR would require a derogation order to be made under the Human Rights Act 1998. The designating derogation order would be laid before Parliament and would need to be debated in both Houses and confirmed within 40 days to allow the conditions to remain in place. 

13.    The operation of the powers to make control orders would be subject to review annually by an independent reviewer.

Published: 22 Feb 2005