Background The Prevention of Terrorism Act 2005
3.In 2001, the UK derogated from Article 5 (right to liberty) of the European Convention on Human Rights (ECHR) and introduced the provisions in Part 4 of the Anti-terrorism Crime and Security Act 2001. These powers allowed the detention pending deportation of foreign nationals, even if removal was not currently possible, if the Secretary of State reasonably believed that the person’s presence in the UK was a risk to national security, and reasonably suspected that the person was involved with international terrorism linked with Al Qaeda. In December 2004, the House of Lords acting in its judicial capacity quashed the derogation order made under the Human Rights Act 1998 and concluded that Part 4 of the 2001 Act was incompatible with Articles 5 and 14 (prohibition of discrimination) of the ECHR.
4.Consequently, in the Prevention of Terrorism Act 2005 (“the 2005 Act”), the Government repealed Part 4 of the 2001 Act and replaced it with a system of control orders to manage the risk to the public posed by suspected terrorists (regardless of nationality). The 2005 Act provided the Secretary of State with powers to make a non-derogating control order against a person the Secretary of State had reasonable grounds for suspecting was or had been involved in terrorism-related activity, where the Secretary of State considered it necessary for purposes connected with protecting the public from a risk of terrorism. A control order placed obligations upon the individual designed to prevent or restrict his or her involvement in terrorism-related activity.
5.The 2005 Act also contained a power for the court – on application by the Secretary of State – to make a derogating control order against a person. A derogating control order was one that imposed obligations that amounted to a deprivation of liberty within the meaning of Article 5 of the ECHR. An example of such a control order would have been one that imposed a 24 hour curfew – i.e. house arrest. By way of contrast, a non-derogating control order was one in which the obligations imposed did not amount to such a deprivation of liberty. Before the Government could have imposed a derogating control order, it would have needed to derogate to the extent strictly necessary from Article 5. No derogation from Article 5 was ever made in relation to control orders; only non-derogating control orders were ever made. A reference to a control order in the rest of this document is therefore a reference to a non-derogating control order.