Commenting the Joint Committee on Human Rights’ report into the Government’s ‘Control Orders’ Shami Chakrabarti, Director of Liberty, said:

“The JCHR speaks with clarity and authority. Any politician planning to compromise on the basis of the “judicial authorisation” of control orders should read with care.

Control orders constitute criminal punishment. If they are imposed under a system of secret intelligence and special advocates, there can be no fair trial.”

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Highlights from the JCHR report:

[14] The Bill envisages the devising (in rules of court) of a SIAC-type special advocate procedure to be used in control order proceedings, including proceedings in which a challenge is made to an order which has the effect of depriving of liberty… It seems to us to be unlikely that the use of a special advocate procedure, in which the individual does not get to see the material on the basis of which the order against him is made, would be compatible with the right to a fair trial in Article 6(1) ECHR.

[6] In light of the Home Secretary's welcome announcement that there is currently no need to derogate from Article 5, because there are no individuals in respect of whom deprivation of liberty could be said to be strictly required, there would seem to be no need for the Government to take in this legislation the power to make derogating control orders depriving individuals of their liberty.

[7] …There is no need, in order to deal with the current threat to the nation, to take much wider powers which by the Government's own admission are not at present strictly required.

[8] At the very least, there can be no justification for including such wide and unprecedented powers of executive detention in legislation which is being rushed through Parliament at a speed which prevents proper scrutiny, in order to be on the statute book in time to deal with those detained under provisions which are shortly to expire. Legislation passed at such speed should be confined to that which is essential to deal with the problem about to arise.

[10] The Bill provides for control orders to be made by the Secretary of State which have the effect of depriving individuals of their liberty, without any prior judicial involvement, and without any intention of bringing them before a court on a criminal charge.

[11] The degree of judicial involvement provided for in the Bill in relation to derogating control orders is unlikely in our view to be compatible with the Convention requirement that deprivations of liberty must be "in accordance with a procedure prescribed by law" in Article 5 of the Convention.

[12] The Home Secretary's reason for refusing to countenance prior judicial authorisation of deprivation of liberty is that this would be to abdicate to the judiciary the executive's responsibility for national security… With respect to the Home Secretary, this is an eccentric interpretation of the constitutional doctrine of the separation of powers… The Home Secretary's argument would apply equally to criminal justice

[16] …A supervisory jurisdiction over a decision based on "reasonable grounds for suspicion" is not a very strong measure of judicial control, and this is likely to affect the assessment of the proportionality of the interference with Convention rights, particularly where the obligation imposed by the Home Secretary has a severe impact on the right in question.

[18] …The open-ended nature of the discretion to impose obligations (the Bill authorises the Home Secretary to impose any obligation on an individual, and contains an "illustrative list" of the sorts of obligations which can be imposed) raises an issue as to whether this provision satisfies the requirement that interferences with Convention rights be "prescribed by law."