Judge brands control orders 'unlawful' (UK)posted on June 29, 2006 | in Category International | PermaLink
Source: The Times Online (UK)
Date: June 28, 2006
A cornerstone of the Government's security policy was thrown into doubt today after a High Court judge ruled the use of control orders on terrorist suspects to be unlawful.
In a ruling that instantly re-ignited the feud between the Government and the judiciary, Mr Justice Jeremy Sullivan said that powers enshrined by the orders were so severe that they amounted to a deprivation of liberty without a trial and, as such, breached European human rights legislation.
Quashing orders against six men - one British citizen and five Iraqis referred to only by initials - he told the High Court in London: "The [Home Secretary] had no power to make the orders and they must therefore all be quashed."
Control orders were introduced in April last year after the courts rejected post-September 11 emergency powers allowing police to imprison suspected foreign terrorists indefinitely without trial.The measures - which give the Home Office the power to severely restrict the lifestyles of terror suspects, including placing them under conditions akin to house arrest - were steered onto the statute book days before the last general election. It is believed that 14 control orders have since been imposed.
The orders - which also allow the use of electronic tagging, the conviscation of passports and a ban on associating with other named suspects - can remain in force for up to 12 months before being reviewed by the Home Secretary.
The powers were drafted to circumvent European Convention rules which state that a country may not deprive someone of their liberty without a trial unless it first declares an emergency and "derogates" - or departs from - the preservation of basic human rights.
The Home Office has argued that control orders do not constitute "deprivation of liberty" and it therefore is not necessary to declare that Britain is in a state of emergency. Even after the London bombings of July 7 last year, lawyers have warned that such a claim could be difficult to substantiate.
Mr Justice Sullivan disagreed, ruling that the men had indeed been deprived of their liberty without trial.
His ruling will enrage MPs, and reactivate the row between the Government and the judiciary over the balance between public safety and human rights.
Tony Blair, the Prime Minister, has repeatedly criticised judges for placing too much emphasis on the rights of suspects, and stated earlier this month that the legal system needed to be "rebalanced" in favour of protecting the public.
John Reid, the Home Secretary, said that he would seek to overturn the decision in the Court of Appeal.
“Public safety is our top priority," he said. "Control order legislation ... is a last resort to address the threat from both foreign nationals and British citizens. The obligations are necessary to protect the public and proportionate to the threat that these individuals pose."
The judgement has been welcomed by civil liberties groups, who have long branded control orders an unjust and draconian over-reaction to the threat of terrorism, which sacrifice the fundamental legal right to a presumption of innocence.
In April, Mr Justice Sullivan made a similar ruling on a suspect, a British citizen named as MB, stating that he had not been given a fair hearing before the restrictions were imposed. He described his treatment as an "affront to justice".
The Home Office had argued that the man intended to travel to Iraq to fight United States and British forces.
It will challenge all seven judgments at the Court of Appeal on Monday. The men will remain subject to the terms of their control orders until the appeal is heard.
If the decision stands, human rights lawyers say the Government’s whole system of control orders - the flagship of its post-September 11 security policy - will have to go back to the drawing board.
Natalia Garcia, of law firm Tyndallwoods, which represented the men involved in today’s case, said that she was "heartened" by the ruling. She said: "What they [the Government] have done is to impose conditions of such draconian severity as to be a deprivation of liberty.
"Mr Justice Sullivan has rightly said that the control orders are incompatible with the men’s right to liberty under Article 5, and that the Secretary of State actually had no powers to make them.
"The human cost to my clients of being subject to control orders is incalculable. They are prisoners without rights who have not been charged with any offence and who, it is now clear, are denied their liberty for political reasons."
David Davis, the Shadow Home Secretary, said: "When Control Orders were first debated we warned the Government that exactly this might happen."
Referring to the Conservative leader's proposal to scrap the Human Rights Act and replace it with a British Bill of Rights, he added: "This week David Cameron again raised the consequences of not thinking this through, and pointed out what they do in other countries, and they rubbished it."
Shami Chakrabarti, Director of civil liberties campaign group Liberty, said: "Control orders substitute long-term punishment based on secret intelligence for charges, evidence, and proof. This kind of injustice is completely counterproductive in fighting terrorism."
Lord Carlile, the Government's terror watchdog, told the BBC that the government might now be forced to modify control orders.
"If the Court of Appeal upholds the judgement of Mr Justice Sullivan, I would expect the government to look at each of the control orders on the merits," he said.
"Each control order will have to be brought within stricter limits so that it does not breach Article 5 of the European Convention on Human Rights."
Copyright 2006 Times Newspapers Ltd.