Control Orders

Control Orders can be made by the Home Secretary to restrict an individual's liberty for the purpose of  "protecting members of the public from a risk of terrorism". The power is contained in The Prevention of Terrorism Act 2005.

Anyone subject to a control order can have restrictions placed on what he/she can use or possess, his place of work, place of residence, to whom he can speak and where he can travel. He has to surrender his passport, let the police enter his home at any time, report to officials and allow himself to be electronically tagged.

An order is usually made where the evidence against a suspect is so sensitive that it cannot be used in court because it might endanger national security or intelligence sources.

Needless to say these orders have been challenged as being in breach of the European Convention on Human Rights.

The House of Lords( now the Supreme Court) has considered the matter and in the latest case Secretary of State for the Home Department v AF reported on 10th June 2009 the Law Lords ruled that sufficent details of allegations made against an individual must be disclosed to enable him to provide proper instructions to his lawyer.

However in reaching this decision the court stated that it was bound by an earlier decision of the European Court of Human Rights(ECHR) which provided that non-disclosure of evidence automatically breached the convention. That was the case of A v UK.

Previously the House of Lords in Secretary of State for the Home Department v MB had ruled that even where no disclosure of evidence had been made justice could still be done depending on the circumstances.

In particular Lord Hoffman said that the decision in A v UK  "was wrong and that it may well destroy the system of control orders which is a significant part of this country's defences against terrorism."

The reaction in the media was predictable.

Human rights organisations were jubilant.

The Labour government which after all had committed this country to the decisions of ECHR was disappointed even though it must have known what the outcome was going to be.

In reality, the House of Lords was simply following the path set for it by it's political masters. 

This is a  real example where the law of England and Wales is no longer made in Westminster and interpreted by our courts but by foreign judges who are seeking to create a unified system over a large number of jurisdictions each with their own legal customs.

Lord Hoffman has already made a speech to this effect.

We are on a collision course with the ECHR and I for one await developments with great interest.