Control orders in the fight against terrorism: The UK perspective

• Author: Emmanouela Mylonaki
• Position: Senior Lecturer in Law, Director of Postgraduate Programmes, London South Bank University, Law Department, UK
• Pages: 65-68

CONTROL ORDERS IN THE FIGHT AGAINST TERRORISM:

THE UK PERSPECTIVE

Emmanouela Mylonaki

Abstract

For many decad es, states have been engaged in a persistent fight aga inst those deemed “terrorists” at

both nationa l and interna tional level. The UK in particular has been determined to control and confront

terror ists, made evident by the a doption of numerous legal instruments and counter -terrorism mechanisms. The

present article investigates one of the most contr oversial and complex legal instr uments adopted by the UK,

namely control order s.

Keywords: control or ders, prevention, investigation, terror ism.

Introduction

The purpose of the article is to contribute to the deba te on the actua l necessity of the system of control

orders and the essential contours of such a system. The pa per is divided in two sections. The first sectio n

presents the system of control order s since its original inception in the UK. The second section focuses on the

recent pr oposals for the abolition of control orders a nd their repla cement with the so-called TPIMs (Terr orism

Prevention and Investigation Measures). To this end, the TPIMs r egime is exa mined in order to determine

whether there is a change in a pproach, the applicable tests and how the new system could engage more

effectively with the investigative process. The article might b e of particular r elevance to those inter ested in

learning more about UK’s system of control orders, providing food for thought for other countries adopting

measures of prevention and counter -terrorism.

I. The Introduction of Control Orders in the UK

A control order was defined by the Prevention of Terrorism Act 2 005, section 1(1) as an order “a gainst

an individual tha t imposes obligations on him for purposes connected with pr otecting members of the public

from a risk of terrorism”. Since its introduction in the UK, the control order scheme contained a number o f

restrictive measures such as the use of electronic tags, home curfews, strict restrictions on the use of mobile

phones or public tr ansport, measures that could be imposed by the Home Secretary as a means of p reventing

terrorist activities of “those dangerous individuals who cannot get prosecuted or deported, but who cannot be

allowed to go on their way unchecked because of the seriousness of the risk that they pose to everybody else in

the country” (Rt Hon Charles Clarke MP, Hansard, HC Debates, 23 Feb 2005: Column 3 39). Likewise, the

system of control orders allowed restrictions to be imposed - up to 12 months - upon individuals for whom there

were reasonable grounds for suspecting that they had been involved in terrorism related activities. The mere fact

that the decision for a control order to apply rested with the Home Secretar y rather than with a court decision, in

conjunction with the fact that the controlee has had no right to know the evidence against him, were the

triggering factors for the strong objections against the scheme of control orders.

The aforementioned restrictions and obligations imposed upon individuals have been criticised by

human rights organisations that argued that “control orders combined the injustice of punishment without trial

with the insecurity of allowing terror suspects to roam around communities or disappear” (www.justice.org.uk).

The conflict between the application of control orders and art. 5 and 6 of the ECHR has been the main point of

critique agai nst the UK control scheme. (Joint Committee on Human Rights Twelfth Report Session 2005-06

Counter-Terrorism Policy and Human Rights: Draft Prevention of T errorism Act 2005 (Continuance in force of

sections 1 to 9), Order 2006 HL 122/HC 915).

Since the introduction of control orders in the UK, opinions have been divided regarding their necessity

and future application. T he Independent Reviewer of Terrorism Legislation Lord Carlisle concluded that control

orders remain necessary in those small numbers of ca ses where the suspected person represents a risk to the

national security and for whom prosecution is unrealistic.

1 His view is further reinforced by the Government

retention of control orders until 31 st December 20112 and until a replacement system will become full y effective.

According to the Independent Reviewer, the control orders system is fair and balances natio nal security and civil

liberty,3 by filling a gap between prosecution and other alternatives such as deportation.4 Such a view, however,

 Senior Lecturer in Law, Director of Postgraduate Programmes, London South Bank University, Law Department, UK. e-mail:

mylonake@lsbu.ac.uk

1 Lord Carlisle, Fifth Report of the Independent Reviewer Pursuant to Section 14 (3) of the Prevention of Terrorism Act 2 005 1 February

2010 at page 34.

2 SI 2011 No. 716, The Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1 to 9) Order 2011, In force 11 March 2011.

3 Lord Carlisle, Sixth Report of the Independent Reviewer Pursuant to Section 14 (3) of the Prevention of Terrorism Act 2005 3 Februa ry

2010 at page 21 para 49.

4 Ibid, at page 24 para 61 and page 32 para 82.