House of Lords Must Ensure Fair Trial Safeguards for Control Orders
March 2, 2005
The government complains that it cannot prosecute all those who pose a risk, because key evidence cannot be revealed in court. And yet, instead of addressing that problem, the Government seems determined yet again to resort to authoritarian shortcuts.
Rachel Denber Acting Executive Director Human Rights Watch

The fundamental human rights concerns raised by the Prevention of Terrorism Bill have yet to be addressed, Human Rights Watch said in briefing paper released today. The third and final reading of the Bill in the House of Lords is due tomorrow, March 3.

“In a democracy, it is a basic principle that the state can only punish people after they have received a fair trial,” said Rachel Denber, acting executive director of Human Rights Watch Europe & Central Asia division. “Calling severe restrictions on where you may go or whom you may meet “preventative measures” does not make them any less punitive. And having a judge impose those punishments without a trial does not sanitize them either.”

The proposed legislation allows the Home Secretary to impose “control orders” short of house arrest – which could include restrictions on the right to liberty and privacy, and freedom of expression and association—on the basis of a mere suspicion of involvement in terrorism based on secret evidence. Subsequent review by the courts would be limited to narrow points of law and preclude reconsideration of the evidence. Breach of an order would be a criminal offence. The scheme lacks the due process safeguards required under article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial.

Despite a strong ruling from the Law Lords in December 2004 that the indefinite detention of foreign terrorism suspects without trial breaches human rights law, the bill also contemplates the use of house arrest without a fair trial, as practiced by authoritarian governments from the military regime in Burma to apartheid-era South Africa. This would require the UK again to suspend part of its obligations under the ECHR; the judgment by the Law Lords, Britain’s highest court, struck down a previous attempt to do so. House arrest control orders could be imposed on the basis of secret evidence subject to a standard of proof below that required for a criminal conviction, a procedure in breach of fair trial standards.

The Privy Counsellor Review Committee (“Newton Committee”) and Parliamentary Joint Committee on Human Rights have rightly emphasized that the threat from terrorism should be met through the criminal justice system.

Notably absent from the Bill are any measures that would facilitate prosecution, including the widely-supported relaxation on the ban on intercept evidence in court proceedings. “The government complains that it cannot prosecute all those who pose a risk, because key evidence cannot be revealed in court. And yet, instead of addressing that problem, the Government seems determined yet again to resort to authoritarian shortcuts,” said Denber.

Human Rights Watch is also concerned about the second track of the government’s new counter-terrorism strategy—the deportation of foreign terrorism suspects at risk of torture to North Africa on the basis of no-torture promises from the governments in the countries of return. Foreign Office Minister Baroness Symons recently visited Algeria, Morocco and Tunisia to discuss the return of terrorism suspects with “diplomatic assurances.” Experience shows that these assurances are an ineffective safeguard against torture. The Swedish government relied on diplomatic assurances to return to two Egyptian nationals to Cairo, where they were held in incommunicado detention and subjected to torture.