Counter-Terrorism Bill

Amendment No. 136 poses a distinct threat to the ability of the Government to protect the public from terrorism. It seeks to impose a maximum 12-hour limit on a curfew that can be included in a control order. It is argued that this will make it less likely that control orders will be found to be in breach of Article 5. But the position in terms of the length of curfew that would be in breach of Article 5 is now clear following the House of Lords consideration of the issue. By a 3:2 majority, an 18-hour curfew was found to be in breach of Article 5. From our point of view, this was a disappointing outcome in terms of public protection. However, one Law Lord who found against 18 hours did provide helpful clarity on where the boundary actually lies. He explicitly said, "““rather than leave the Secretary of State guessing as to the precise point at which control orders will be held vulnerable to Article 5 challenges, I state that for my part I would regard the acceptable limit to be 16 hours””." While I know that the Joint Committee regards this as a ““slender legal basis”” for imposing 16-hour curfews, the Government do not agree that that is a fair representation of the position, given that as two other judges believed that 18-hour curfews did not deprive individuals of their liberty, effectively three Law Lords gave clear support to 16 hours. In addition, their Lordships unanimously agreed that a 14-hour curfew did not represent a deprivation of liberty. The suggestion that a 12-hour curfew is the maximum that can be imposed without depriving an individual of his liberty is therefore not credible. It is inconsistent for noble Lords to argue the importance of judicial oversight but then to ignore the courts, and in this case the highest court of the land, where the judgment of the courts does not accord with their own view. What is clear is that the approach taken by the courts to interpreting deprivation of liberty is case-specific and carefully nuanced. In last week’s Court of Appeal judgment on various control order matters, a 16-hour curfew was upheld. However, there has also been a case where a 16-hour curfew was not upheld in the High Court in the context of the circumstances of that individual. The Government are appealing that decision. The concerns I outlined in addressing other amendments relating to the dangers of legislating with regard to what is meant by a deprivation of liberty are potentially relevant in relation to this amendment, too. The JCHR also suggests that the Government need to provide evidence of the significant damage done to the public’s protection against terrorism while shorter curfews were in place. That is unrealistic. In any event, it is not the right way of looking at the issue. The key is the degree of protection that the curfew provides. In some cases, a curfew of 12 hours or less is sufficient to meet the risk posed by the individual. That is reflected in the orders currently in place and in the most recent report of the noble Lord, Lord Carlile, on the operation of the 2005 Act. But in others a 12-hour curfew will not provide the necessary assurance. That is why we have in place a number of curfews set at 14 and 16 hours. These take account of the national security case against each individual concerned and the behaviour that the curfew is seeking to restrict. In short, the obligations imposed are rightly tailored to meet the risk posed by the individual. To restrict the ability of the Government to tailor obligations to the risk posed by individuals within the clear framework now established by our courts would certainly not be in the interests of security. On a common-sense level, it is clear that a 12-hour curfew is not as effective as a 16-hour curfew against someone who is, for example, trying to make a certain communication. Control orders are designed to help manage the risk posed by suspected terrorists but, as the Committee is well aware, they cannot eliminate that risk entirely.