Control orders

The new Prevention of Terrorism Act 2005 became law on 11 March. Britain now has a Terrorism Act, an Anti-Terrorism, Crime and Security Act (ATCSA) and a Prevention of Terrorism Act (PTA) simultaneously in force. The PTA gives the British Labour government power to impose ‘control orders’, akin to the house arrests and ‘banning orders’ of apartheid South Africa, with the added ingredient of modern technology for tracking, surveillance and monitoring the every move of the ‘suspected terrorist’. NICKI JAMESON reports.

The latest law was hurriedly brought in following the House of Lords judgment in December 2004 that the provision under the ATCSA that allowed for ‘suspected terrorists’ who were not British citizens to be detained indefinitely without trial was unlawful and incompatible with Britain’s obligations under the European Convention on Human Rights (ECHR) (see FRFI 183 December 2004/January 2005).

The PTA was finally passed after a marathon parliamentary sitting involving both the House of Commons and House of Lords. The government had wanted to retain full executive power over the issuing of control orders while the Lords were adamant that responsibility for them should be judicial.

The government was also forced, much against its will, to agree to a requirement that the powers to make control orders will lapse unless renewed annually by a vote by both Houses of Parliament.

Despite the amendments forced onto this vicious illiberal government by the unelected but more democratically-minded House of Lords, the introduction of control orders into the state’s armoury is a further blow to civil liberties in this country.

The Act creates two types of control orders, described as ‘derogating’ and ‘non-derogating’. This refers to the need for the government to ‘derogate’ from, or opt out of, Article 5 of the ECHR, which forbids detention without trial, if it is to impose house arrest.

For an order for indefinite house arrest to be imposed Parliament must first agree a derogation order. This order will come into force immediately, but will have to then be debated and ratified by both the Commons and the Lords within 40 days. Once this is in place, the Home Secretary can apply to a court for an order that a named person must remain in a particular place at all times.

‘Non-derogating orders’ (appropriately nicknamed ‘anti-terrorist ASBOs’) do not require opting out of Article 5 so are easier to impose. They allow the Home Secretary to impose a wide range of conditions including bans on internet or mobile phone use; restrictions on movement and travel; restrictions on employment and leisure activities; restrictions on association or communication with named individuals or with people in general; a requirement not to leave home for a specified period of up to 24 hours; requirements to allow access to your home or other premises, for the place to be searched and items removed; requirements to be electronically tagged in order to monitor curfews and to permit the monitoring of your telephone calls.

In general, in order to make this type of order, the Home Secretary will have to apply for leave from a judge of the High Court. However in a situation deemed ‘urgent’ the Home Secretary can issue the order with immediate effect. However he must then refer it to court within seven days for confirmation.

As soon as the act was passed the ten men who had been imprisoned for four years in Belmarsh and elsewhere without charge under the ATCSA powers were released and subjected to ‘non-derogating’ control orders, imposed using the ‘urgency’ procedures.
Control orders can be imposed on British citizens or foreign nationals, in contrast to the ATCSA provisions which were only applied to foreign nationals. All that is needed is for the Home Secretary to decide he has ‘reasonable grounds’ for suspecting that the person concerned is or has been involved in ‘terrorism-related activity’. Such activity includes not only the ‘commission, preparation or instigation of acts of terrorism’ and ‘conduct which facilitates...such acts’, but also ‘conduct which gives encouragement...to such acts’ and ‘conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity’. Potentially, the family, friends, lawyers, colleagues and comrades of any person considered by the government to be a terrorist suspect are therefore all targets for the imposition of further control orders, along with anyone who verbally supports but does not engage in ‘terrorist activity’.

The government claims that the ‘suspected terrorists’ cannot be tried in court because, although there is compelling evidence against them, it is ‘intelligence-based’ and cannot be aired in court. Whatever the truth of this (and it appears increasingly that this ‘intelligence’ consists of information extracted under torture from detainees at Guantanamo Bay and Bagram Air Base) labelling individuals for harassment on the basis of little or no evidence sends a message to whole communities. The new PTA, like its predecessor, which for years was used to terrorise the Irish community away from showing active support for the war against British occupation, is a political tool. It is being used to intimidate Muslims in Britain and scare them away from active opposition to US/British hegemony in the Middle East.

FRFI 184 April / May 2005