Control orders and the Prevention of Terrorism Act 2005

Control orders were introduced by the Prevention of Terrorism Act 2005 following a successful challenge to the human rights compatibility of the provisions for detaining foreign terrorist suspects previously contained in Part 4 of the Anti-terrorism, Crime and Security Act 2001. Additional information about the background to the introduction of the 2005 Act is contained in the Library Research Paper on the Bill. The legislation proved highly controversial and it was amended and significantly shortened during its passage through Parliament as the Government sought to enact it before the dissolution of Parliament prior to the 2005 General Election. The Bill received Royal Assent as the Prevention of Terrorism Act 2005 on 11th March 2005 and came into force immediately. The Government’s Explanatory Notes on the Act are available online.

The 2005 Act is aimed at preventing terrorism-related activity by individuals, irrespective of their nationality or terrorist cause, through the use of two kinds of control orders: “derogating” and “non-derogating”. These terms refer to the Government’s view of the compatibility of the orders with the right to liberty and security set out in Article 5 of the European Convention on Human Rights (ECHR). There has been a substantial amount of litigation about the control order regime. On 31 October 2007, the House of Lords, in a series of judgements, concluded that some of the conditions imposed on certain suspected terrorists breached human rights legislation, however the court upheld the use of the control order regime. A further hearing by the House of Lords on whether the current use of “closed material” complied with Article 6 of the ECHR took place in March 2009. The Court concluded (following an earlier judgement of the European Court of Human Rights) that a ‘controlee’ must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. It also stated that where open material provided to the controlee consisted purely of general assertions (and the case against the controlee was based solely or to a decisive degree on closed materials) the requirements of a fair trial would not be satisfied.

This note is intended to provide a brief summary of the key provisions of the Act and the use that the Home Secretary has made of the powers under the Act since it came into force. The main provisions of the Act (sections 1-9) require annual renewal and there have been four successful motions to renew since 2005. The last debate in the Commons on the Draft Prevention of Terrorism Act 2005 (Continuance in force of Sections 1 to 9) Order 2009 took place on 1 March 2010, where the provisions were renewed for a further year. A further renewal debate is due to take place on 2 March 2011.

In their 2010 Election Manifesto, the Liberal Democrats pledged to scrap control orders. In a policy review paper, entitled A Resilient Nation, published in January 2010, the Conservatives stated that they would “review the Control Order system with a view to reducing reliance on it and, consistent with security, replacing it”.

In February 2010, the Labour Government published its own assessment of the use of control orders. Contained in a Memorandum to the Home Affairs Select Committee, entitled Post-Legislative Assessment of the Prevention of Terrorism Act 2005 (Cm 7797) it indicated that the Home Office spent approximately £10.8 million on control orders between April 2006 and August 2009. It also noted that at the time of the Home Secretary’s quarterly Written Ministerial Statement on control orders (for the period ending 10 December 2009) there were only twelve orders in force and only 45 individuals had ever been subject to a control order. More up to date statistics on the operation of the regime can be found at Section J.