The Prevention of Terrorism Act 2005 falls foul of the United Kingdom’s human rights obligations, Human Rights Watch said today. The law, which allows for control orders restricting the freedom of terrorism suspects, was rushed through Parliament in response to a December 2004 ruling by Britain’s highest court that the indefinite detention of foreign terrorism suspects breached human rights law.
“First we had indefinite detention, now we have curfews and tagging – but still without trial. That hardly counts as progress,” said Ben Ward, special counsel in the Europe and Central Asia division of Human Rights Watch. “The government refuses to acknowledge a basic truth: punishment without trial is unacceptable, no matter what.”
Control orders replace the powers under part 4 of the Anti-Terrorism Crime and Security Act (ATCSA) allowing the indefinite detention of foreign nationals certified as terrorism suspects. Those powers expired on March 13. Parliament passed the law after a marathon day-and-night sitting that broke parliamentary records, during which the House of Lords sent the bill back to the House of Commons four times. In December 2004, the Law Lords ruled that the part 4 powers—which required the U.K. to suspend (“derogate” from) part of the European Convention on Human Rights—were in breach of the Human Rights Act, which incorporates the convention into British law. Notably absent from the new Act are any measures to facilitate the prosecution of terrorism suspects, ignoring the detailed recommendations made by the Privy Counsellor Review Committee (“Newton Committee”) in December 2003, a year before the Law Lords judgment.
Within hours of the new law’s passage, the Home Secretary applied control orders to ten men certified under the ATCSA as terrorism suspects, some of whom had been detained since December 2001. Nine of the ten were released on bail late last week pending approval of the new legislation. The tenth was previously under house arrest. The orders imposed on the men include a curfew, electronic tagging, restrictions on visitors and meeting others, a ban on the use of the internet and limits on phone communication. Two other men certified were not released: one, known only as I, is reportedly serving a prison sentence for other offences; another, known only as S, is detained under other powers. Two more men certified under ATCSA have left the United Kingdom, and a further three were released in 2004 and earlier in 2005 after their certificates were revoked.
The measures in the Act are almost identical to those in the government’s original bill. The Home Secretary can apply control orders short of house arrest to persons whom he suspects of involvement in terrorism for seven days. Within seven days, the High Court must determine whether there is sufficient evidence that if it true would justify the imposition of the control order. The individual need not be present or legally represented at this preliminary hearing. Confirmation of the order triggers a full hearing, a procedure that could include the consideration of secret evidence at closed hearings from which the controlled person and his or lawyer are excluded and the application of a standard of proof well below that required for a criminal conviction. Similar proceedings in the Special Immigration Appeals Commission were used to assess certificates under the Anti-Terrorism Crime and Security Act. The use of secret evidence raises the prospect that control orders may be founded in part on material obtained under torture from third countries, since the U.K. government insists that it is entitled to rely on such material provided that it was not involved in the torture.
The limited degree of judicial supervision in the making of control orders under the Act falls well short of the requirements for a fair trial set out in Article 6 of the European Convention for Human Rights. The right to a fair trial includes the presumption of innocence, the right to an effective defense, and a meaningful opportunity to contest the evidence. Human Rights Watch addressed its concerns with the draft legislation in a briefing paper published March 3, 2005.
“Secret evidence is a recipe for miscarriages of justice,” said Ward. “Serious restrictions on liberty should be imposed only after a fair trial.”
The Act also gives the government the power to impose control orders amounting to house arrest, provided that it first “derogates” from article 5 of European Convention on Human Rights. So-called “derogating” control orders can only be made by the High Court, upon application by the government. The evidence presented by the government must establish “reasonable grounds” for suspecting involvement in terrorism-related activities, in a preliminary hearing from which the individual and his or her lawyer can be excluded. The court must then conduct a narrow judicial review of the order in a subsequent full hearing, with all parties present, applying the civil standard of proof (“balance of probabilities”). The court would be entitled to consider secret evidence in closed sessions from which the controlled person and his or her lawyer would be excluded
While house arrest can be ordered for an absolute maximum of twelve months, there is no limit on the number of times that other control orders may be renewed. The Act will remain in force for one year, but may be renewed for another year.
The Home Secretary Charles Clarke said prior to the passage of the law that the government contemplated imposing control orders on twenty people currently identified as terrorism suspects, including those formerly subject to indefinite detention. However, the Act relies on an extremely broad definition of terrorism, opening the door for the widespread use of control orders. Tony Blair has refused to rule out the use of control orders on protesters at the upcoming summit of G-8 governments in Scotland in July. “The Prime Minister’s willingness to contemplate the use of terrorism control orders on protesters underscores the danger of this law,” said Ward.