Last June the law lords dealt a major blow to the controversial use of control orders on terror suspects, a key part of the government’s battle against terrorism since the July 2005 bombings, saying that reliance on secret evidence denies them a fair trial. The nine-judge panel upheld a challenge on behalf of three men on control orders who could not be named. The orders were not quashed but the law lords ordered that the cases be heard again. Lord Phillips of Worth Matravers, the senior law lord who led the panel, said that “a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him”.

As a result of this ruling up to 20 men regarded as Britain’s most dangerous terror suspects became able to challenge their detention. A man of dual Libyan and British nationality, known as AF, had been subject to a control order for three years because of alleged links with Islamic terrorists. His order has been revoked. Another terror suspect, known as AN, suspected of links to al-Qaida, was released from his control order in July. AE, an Iraqi national suspected of involvement in terrorist training and activities, has also been released from his control order. Two more are due to begin court battles from 1 October to get their control orders revoked as a result of the Law Lords ruling. This reduces the total number of terror suspects currently under the surveillance regime to 15. For the first time, the majority of them – nine out of 15 – are British citizens, with seven living in the London area.

Home Secretary Alan Johnson told the Police Superintendents’ Association of England and Wales conference on 16 September that control orders are not perfect but they remain the best option to protect the public. On this basis, he had decided to maintain their availability “within the constraints of the House of Lords judgment.” He added “however, as further control order cases are considered by the courts during the autumn, I will be keeping this assessment under review.”

At the same time, in a ministerial statement, he has ordered a wholesale review of the control orders regime. “I have asked the independent reviewer of the Prevention of Terrorism Act 2005, the Lord Carlile of Berriew QC, to review the impact of the House of Lords judgment and to advise me as to whether the assessment that the regime remains viable is right.” In addition Lord Carlile has been asked to keep a watching brief on further control order cases in the high court over the next few months, to assist in the process of assessing the workability of the regime. Lord Carlile is due to report back early next year.

Control orders under the Prevention of Terrorism Act 2005 impose curfews and travel restrictions on terror suspects who cannot be prosecuted in courts because the evidence against them has been collected by bugging the suspect or because using it could reveal intelligence sources. Interim orders, signed by the home secretary, must be referred to a judge within seven days for confirmation.

Last week the law lords dealt a major blow to the controversial use of control orders on terror suspects, a key part of the government’s battle against terrorism since the July 2005 bombings, saying that reliance on secret evidence denies them a fair trial. The nine-judge panel upheld a challenge on behalf of three men on control orders who cannot be named. The orders have not been quashed but the law lords have ordered that the cases be heard again. Lord Phillips of Worth Matravers, the senior law lord who led the panel, said that “a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him” While accepting that there could be conflict where national security is involved, a conflict to be resolved by government subject to the law laid down by Parliament, he added that “the best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied upon in support of those allegations. Where the evidence is documentary, he should have access to the documents. Where the evidence consists of oral testimony, then he should be entitled to cross-examine the witnesses who give that testimony, whose identities should be disclosed”. Lord Hope, in concurring, said that “if the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him.”

As a result of this ruling up to 20 men regarded as Britain’s most dangerous terror suspects can challenge their detention. The new home secretary, Alan Johnson, said the judgment was extremely disappointing. “Protecting the public is my top priority and this judgment makes that task harder,” he said. He added that the government would continue to take all steps to manage the terrorism threat. All control orders would remain in force for the time being and he would continue to seek to uphold them in the courts, while considering this judgment and other options carefully.

Shami Chakrabarti, the director of the civil liberties group Liberty, Chris Huhne, the Liberal Democrat home affairs spokesman and Chris Grayling, the shadow home secretary, all went on record to welcome the law lords’ decision and to demand an end to “cruel and counter-productive punishments without trial”.

The full text of the ruling in House of Lords, session 2008-09 [2009] UKHL 28 on appeal from: [2008]EWCA Civ 1148 can be found at:

http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090610/af-1.htm