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 His order has been revoked.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

The Home Office recently published a consultation document and draft regulations to implement a European Directive requiring the retention of electronically generated data. The consultation document states that this is “to enable public authorities to undertake their lawful activities to investigate, detect and prosecute crime and to protect the public.” It goes on to say “the term communications data does not refer to the content of communications. It’s about:

• Who is communicating with whom?
• When and where are they communicating?
• What type of communication is it?”

In the aftermath of the July 2005 London bombings, the then Home Secretary, Charles Clarke, took the lead in securing the Directive, which specifically places the provisions in the context of the EC’s “declaration condemning the terrorist attacks on London”. So far so good, but in implementing the requirements the Government is going way beyond terrorist offences. The catch-all provisions of the 2000 Regulation of Investigatory Powers Act mean that access to personal internet and text data will be available to all public bodies licensed under that Act. According to the ‘Guardian’ “this means that hundreds of public bodies including local councils, health authorities, the Food Standards Agency, the Health and Safety Commission and even the education standards watchdog will be able to require telecommunications companies to hand over the personal data”.

Opposition spokesmen have condemned these requirements as a “snooper’s charter”, but the Home Office loftily declares “we consider that these measures are a proportionate interference with individuals’ right to privacy to ensure protection of the public.” The recent track record of public bodies in protecting sensitive data gives little cause for confidence.

If you want to contribute to the debate you have until 31 October. For the full text of the consultation paper, the EU Directive and the draft regulations see http://www.homeoffice.gov.uk/documents/cons-2008-transposition?view=Binary

An earlier blog (10.06.08) contrasted ‘Hitchhiker’s Guide to the Galaxy’, where 42 is the answer to the meaning of life, the universe and everything, with the Government, for whom 42 is more a problem than an answer. 42 achieved the status of a threat to the leadership of the Government through the wheeling, dealing and almost daily concessions to get the provisions of the Counter-Terrorism Bill through the Commons, with the actual number itself seeming to be sacrosanct.

This week the headache became a full blown migraine for the Government when plans to give police up to 42 days to question terrorism suspects were crushed by the House of Lords. Peers voted against the measure by 309 votes to 118. This came after opposition to the proposals from all sides, with 24 Labour rebels including two former Lord Chancellors, Lord Irvine and Lord Falconer, as well as Baroness Manningham-Buller, the former head of MI5, Lord Justice Woolf, the former Lord Chief Justice, and Lord Condon, the former Metropolitan Police Commissioner.

In an emergency statement to MPs, Home Secretary Jacqui Smith conceded defeat and said that the Counter-Terrorism Bill would continue its journey through Parliament without the 42 day measure. According to the ‘Guardian’, Government sources said the Prime Minister’s hand was forced because whips in the Commons told Downing Street that they would struggle to muster a majority in favour of the proposal. The 42 day plan was only passed by MPs in June by nine votes after the Prime Minister won the support of the nine Democratic Unionist MPs. If ministers had insisted on keeping the 42 day plan there would have been the need for a series of votes in the Commons to overturn the Lords’ rejection and eventually the use of the Parliament Act to force the bill through next year.

The capitulation was defiantly unrepentent. In her Commons statement, the Home Secretary was positively reproachful. She said “The other place has tonight voted to remove from the Counter-Terrorism Bill the protections that the government believes should be in place. Not to amend; not to strengthen; simply to remove. Mr Speaker, my priority remains the protection of the British people. I do not believe, as some hon. members clearly do, that it is enough to simply cross our fingers and hope for the best …that is not good enough. Because when it comes to national security, there are certain risks I’m not prepared to take.”

In what some see as a face saving gesture, the Home Secretary announced that she had “prepared a new bill to enable the police and prosecutors to do their work – should the worst happen, should a terrorist plot overtake us and threaten our current investigatory capabilities… The Counter Terrorism (Temporary Provisions) Bill now stands ready to be introduced if and when the need arises. This would enable the Director of Public Prosecutions to apply to the courts to detain and question a terrorist suspect for up to a maximum of 42 days. Individuals could only be detained where this is authorised by a judge.” Once again the totemic 42 days.

The climb down has pleased a wide diversity of groups, and it is reported that David Davies, who resigned his seat and fought a by-election over this issue, shared a celebratory bottle of champagne in the Commons with Shami Chakrabarti, the director of Liberty.

According to ‘Hitchhiker’s Guide to the Galaxy’, 42 is the answer to the meaning of life, the universe and everything. But for the Government, 42 is more a problem than an answer.

Given that the number of days a suspect spends in detention before trial is a not a scientific exercise but an uneasy compromise, how can it be that 42 has achieved the status of a threat to the leadership of the government? While there has been much agonising , soul searching and almost daily concessions to get the provisions through Parliament, the actual number itself seems to be sacrosanct. All this for a proposed law which may be needed one day in the future, may never be used at all, and would affect very few people.

The police have apparently provided examples of circumstances which would justify the 42 days, but even they have not claimed that any terrorist has escaped justice because 28 days was not enough. The Security Services don’t want it, former senior Law Officers have spoken against it – even those who supported the Government in the previous 90 day vote – and almost all others in the know (but not on the Government payroll) agree that there is no evidence backing 42 days. The current level of 28 days is more than other members of the European Union consider necessary, despite being equal targets for terrorism. Their criticism of the British proposals has been robust and concerted.

Writing in the ‘Guardian’, Marcel Berlins says 42 is symbolic. “It represents all the government’s excessive anti-terrorist legislation; detention without charge or trial; the steady erosion of the rule of law; and the nibbling away of civil liberties. The resistance of the Labour rebels is not based on a calculation of how many weeks is appropriate. It is a statement encompassing the whole of Labour’s anti-terrorist policy. Enough is enough.”

Come back Douglas Adams. Your country needs you.