Control Order Powers

Baroness May of Maidenhead Excerpts

Tuesday 11th October 2011 Written Statements

[The Secretary of State for the Home Department (Mrs Theresa May)]

Section 14(1) of the Prevention of Terrorism Act 2005 (the 2005 Act) requires the Secretary of State to report to Parliament as soon as reasonably practicable after the end of every relevant three-month period on the exercise of the control order powers during that period.

The level of information provided will always be subject to slight variations based on operational advice.

The future of the control order regime

The Terrorism Prevention and Investigation Measures (TPIM) Bill, which makes provision for the abolition of control orders and their replacement with a new, less intrusive and more focused regime, is continuing its parliamentary passage. A copy of the Bill can be found on Parliament’s web site. The home page for the Bill is:

http://services.parliament.uk/bills/2010-11/terrorismpreventionandinvestigationmeasures.html.

The control order system will continue to operate until its replacement is in force.

The Government’s counter-terrorism and security powers review concluded that there may be exceptional circumstances where more stringent measures may be required to protect the public than those available under the TPIM Bill. Such circumstances would be a very serious terrorist risk that cannot be managed by any other means. The Government committed to preparing draft emergency legislation for introduction should such circumstances arise. The draft enhanced TPIM Bill was published on 1 September so that it can be subject to pre-legislative scrutiny.

The exercise of the control order powers in the last quarter

As explained in previous quarterly statements, control order obligations are tailored to the individual concerned and are based on the terrorism-related risk that individual poses. Each control order is kept under regular review to ensure that the obligations remain necessary and proportionate. The Home Office continues to hold Control Order Review Groups (CORGs) every quarter, with representation from law enforcement and intelligence agencies, to keep the obligations in every control order under regular and formal review and to facilitate a review of appropriate exit strategies. During the reporting period, one CORG was held in relation to some of the orders in force at the time. CORGs in relation to the remaining cases were held just before this reporting period. Other meetings were held on an ad hoc basis as specific issues arose.

During the period 11 June 2011 to 10 September 2011, no non-derogating control orders were made or served. Two control orders have been renewed in accordance with section 2(6) of the 2005 Act in this reporting period. One control order was revoked during this reporting period as it was no longer considered necessary. One control order, made in a previous quarter but never served, expired during this reporting period.

In total, as of 10 September, there were 11 control orders in force, all of which were in respect of British citizens. All of these control orders were non-derogating. One individual subject to a control order was living in the Metropolitan police district; the remaining individuals were living in other police force areas.

Three individuals were charged with breaching their control order obligations during this period.

During this reporting period, 76 modifications of control order obligations were made. Twenty-two requests to modify control order obligations were refused.

Section 10(1) of the 2005 Act provides a right of appeal against a decision by the Secretary of State to renew a non-derogating control order or to modify an obligation imposed by a non-derogating control order without consent. Two appeals have been lodged with the High Court during this reporting period under section 10(1) of the 2005 Act. A right of appeal is also provided by section 10(3) of the 2005 Act against a decision by the Secretary of State to refuse a request by a controlled person to revoke their order or to modify any obligation under their order. During this reporting period no appeals were lodged with the High Court under section 10(3) of the 2005 Act.

Seven judgments have been handed down in relation to control order cases during this reporting period; five by the High Court and two by the Court of Appeal.

On 13 June 2011 a judgment was handed down by the High Court in relation to the appeal brought by BG under section 10(1) of the 2005 Act. In BG v. Secretary of State for the Home Department [2011] EWHC 1478 (Admin), the High Court upheld the Secretary of State’s decision.

On 18 July 2011 the High Court handed down a judgment following the Court review of the imposition of a control order under section 3(10) of the 2005 Act. In Secretary of State for the Home Department v. BF [2011] EWHC 1878 (Admin), the High Court upheld the decision to make the control order.

On 22 July 2011, the High Court handed down a judgment in relation to an appeal by a controlled individual under section 10(3) of the 2005 Act. In BM v. Secretary of State for the Home Department [2011] EWHC 1969 (Admin), the High Court upheld the Secretary of State’s decision.

The High Court handed down a further judgment on 25 July 2011 in relation to two individuals who were each subject to control orders for only a short period of time. In Secretary of State for the Home Department v. CB and BP [2011] EWHC 1990 (Admin), the Court ruled that it was appropriate for it to exercise its case management powers to, in effect, terminate the court review of the imposition of their control orders. The Court also ordered the discharge of the anonymity orders made in these cases. Abid NASEER (CB) and Faraz KHAN (BP) have been granted permission by the High Court to appeal the decision to terminate the Court proceedings.

On 29 July 2011 the High Court handed down a judgment following the Court review of the imposition of a control order under section 3(10) of the 2005 Act. In Secretary of State for the Home Department v. CD [2011] EWHC 2087 (Admin), the High Court upheld the decision to make the control order.

The first judgment handed down by the Court of Appeal in this reporting period relates to the appeal brought by AM against the decision of the High Court to uphold his control order. In AM v. Secretary of State for the Home Department [2011] EWCA Civ 710, handed down on 21 June 2011, the Court of Appeal dismissed AM’s appeal.

The Court of Appeal also handed down judgment in this reporting period in the context of the appeal brought by AH, an individual formerly subject to a control order. In AH v. Secretary of State for the Home Department [2011] EWCA Civ 787, handed down on 6 July 2011, the Court of Appeal dismissed AH’s appeal.

Most full judgments are available at http://www.bailii.org/.