Since 2005, the Government has imposed strict controls over people for whom it has ‘reasonable grounds for suspecting … ha[ve] been involved in terrorism related activity’. These ‘control orders’ have been used to ensure the Government can monitor the activities of people who allegedly pose a serious threat to this nation’s security. They can be used to ensure someone is confined to their house for hours at a time; to prevent that person from contacting or mixing with individuals; to prevent access to the internet or use of phones and, in extreme cases, can force individuals to relocate to a different part of the country (sometimes as far as 150 miles away – see the case of Sec of State for Home Dept v AP  UKSC 24).
The Draconian effects of a control order are made all the more grave when the grounds for their imposition are so vague. A specific, factual basis is not required to impose an order – the Government do not have to outline a specific incident to which the order attaches – all that is needed is for the Secretary of State for the Home Department to have information (no matter that the information might be inaccurate or misleading) that arouses a reasonable suspicion of involvement in terrorism related activity. Accordingly, control orders are imposed on people who have not been convicted of criminal activity; indeed, most controlees have not even been arrested in relation to criminal activity. The control order acts as a preemptive strike; better that someone have their right to liberty curtailed on the basis that they might commit an offence, than they be afforded an opportunity to do so.
This reasoning, of course, goes against centuries of English law. The presumption of innocence is a cornerstone of English criminal law, decisively weakened by the existence of the control order regime. Just as troubling is that, without a public trial and with much of the information leading to the imposition of a control order being deemed ‘too sensitive’ for public consideration, a controlee may never learn the reasons why he is subject to an order, thus denying him the right to effectively challenge its imposition.
The imposition of a control order can be challenged in the Courts but, even here, a controlee faces considerable barriers to accessing justice. Control orders are reviewed following their imposition by the High Court. There is then no maximum time limit for which control orders can run; they can be renewed every 12 months an infinite number of times.
A legal challenge brought by the controlee is fraught with difficulties. More often than not, the ‘suspicion’ of involvement in terrorism related activities is founded upon sensitive material that relates to national security. This has lead to the growth of a procedure in which such material is considered in private and presented by a ‘special advocate’ with sufficient security clearance, to a closed Court. The controlee is not allowed access to the Court (nor, even, is his/her lawyer). Nor is the controlee allowed access even to the material upon which the control order is being sought. The ‘special advocate’ is instructed to advance the interests of the controlee but only a ‘gist’ of the sensitive material is provided to the controlee. At no point can full instructions be taken from him.
The Courts have moved to amend control orders where illegality or breaches of fundamental rights are found, for example, in A v UK (2009) 26 BHRC 1; in Sec of State for Home Dept v AF  UKHL 28 and also in Sec of State for Home Dept v JJ  UKHL 45.
TPIMs: The New Regime
The Conservatives and the Liberal Democrats were vehement critics of control orders whilst in opposition. The new measures that they propose will do little to remove the injustice of the control order system however.
Control orders will no longer be available to be used from January 2012 and in their place the Government will adopt a system set out in the Terrorism Prevention and Investigation Measures bill. The new system, known as Terrorism Prevention and Investigation Measures (TPIMs), makes for some very minor improvements on the previous control order regime. Forced relocation will no longer be available and the conditions placed on controlees will not be so restrictive. Equally, a TPIM will not, on the face of it, allow for an infinite number of renewals. In fact, a TPIM will have to be reconsidered after two years and only if new evidence can be provided justifying its extension will a new TPIM be imposed (this renewal process can happen an infinite number of times however). In reality then, (and as numerous legal charities and interested parties have noted) the TPIM remains a control order by another name. The grounds for imposition will remain and it will still be a criminal offence to breach a TPIM.
Nor will the position in relation to the hearing of evidence in secret be changed. Indeed, if the Justice Secretary’s recent Justice and Security green paper is any indication of the Coalition’s intentions, the use of secret hearings (‘closed material procedures’) will only increase over the coming years.
TPIMs, as with control orders, will remain justiciable in the UK Courts on the basis that an individual’s basic rights have been unjustifiably curtailed. It is important that they are scrutinized carefully through judicial review. Public Interest Lawyers, accustomed to opposing the use of ‘secret evidence’ and unwarranted infringements of individual liberty in its cases (see, for example, the European Court of Human Rights Grand Chamber judgment in Al Jedda v UK (Application no. 27021/08) and the ongoing Ekaterina Zatuliveter deportation proceedings at the Special Immigration Appeals Commission), will continue to battle the increased use of closed hearings to determine restrictions placed on someone’s liberty and any infringement of their human rights. Without the anxious scrutiny of judicial review, the alarming reality for those subjected to a control order (or, in due course, a TPIM) will continue to be a life impeded, by a measure agreed in secret, for alleged activity never fully explained.