Reid’s Curfew Orders on Six Terror Suspects Illegal, say Judges

Britain’s three most senior judges last night delivered a humiliating blow to home secretary John Reid’s anti-terror campaign by ruling his “virtual house arrest” powers incompatible with human rights law. The appeal court judges dismissed a plea from Mr Reid to overturn the earlier high court decision to quash the control orders against six Iraqis, which included a daily 18-hour curfew, saying they found Mr Justice Sullivan’s ruling that they amounted to imprisonment by other means “compelling”.

The decision marked a new round in the growing battle between the judiciary and the government over the human rights basis of its anti-terror laws. It means that the judges have forced the home secretary to climb down over the controversial control order regime, introduced last year after the government fought a bruising parliamentary battle to get it on to the statute book, including a Labour rebellion that saw its majority cut to only 14.

Mr Reid last night “reluctantly” agreed to implement the ruling but claimed it would mean that the amended control orders imposed on the six terror suspects “are not as stringent as the security services believe are necessary”.

The appeal court, chaired by the lord chief justice, Lord Phillips, said that the terms of the original orders amounted to a “deprivation of liberty” contrary to article 5 of the European convention on human rights, which bans indefinite detention without trial.

The judges refused the home secretary leave to appeal to the House of Lords and invited him to come up immediately with a “plan B” to replace the illegal orders.

It is understood that the new orders issued last night on the advice of Home Office lawyers involve each suspect being confined to a small flat for 14 hours a day instead of the 18-hour, 4pm to 10am curfew imposed in the original orders.

Mr Reid said he continued to believe that the 2005 Prevention of Terrorism Act, which contains the control order powers, complies with the European convention on human rights despite the rulings by the appeal court and Mr Justice Sullivan.

He said he would try to get the law lords to review the decision: “I intend to appeal against today’s judgment dealing with deprivation of liberty, not least because I am concerned about its effects on public safety. We are at a sustained high level of threat from a terrorist attack … Our security services are at full stretch and control orders form an essential part of our fight against terrorism.”

But Shami Chakrabarti, of Liberty, the human rights organisation, said: “It is very important that the government has been called to account for detaining people without trial in breach of its promises to parliament.”

The appeal court did provide some comfort for Mr Reid by quashing a second ruling by Mr Justice Sullivan, in the case of “MB”, which had described the judiciary’s narrow review powers over the home secretary’s decision to impose a control order as “an affront to justice”. The appeal court judges said that Mr Justice Sullivan was mistaken in believing the review powers did not comply with the right to a fair trial under article 6 of the European convention.

The amended control orders were the most stringent of the 15 currently in force. Mr Reid had admitted that if their terms amounted to house arrest he would have to get a special derogation from the European court of human rights, but hoped that the 18-hour curfews would secure “virtual” house arrest without the need for the derogation. But the appeal court confirmed that the level of confinement qualified as a deprivation of liberty.

The appeal judges said the Strasbourg case law had left a gap between 24-hour house arrest seven days a week, which was a deprivation of liberty, and a curfew of up to 12 hours on weekdays and the whole of the weekend which was a “restriction on movement”. They said Mr Justice Sullivan was right to conclude that Mr Reid’s orders fell on the wrong side of the dividing line.

The shadow home secretary, David Davis, last night alleged that government incompetence had again put public safety at risk.

Timetable of events

• September 11 2001 In the wake of the attacks government introduces “Belmarsh” powers giving home secretary power to detain foreign terror suspects indefinitely. Seventeen people held under these powers.

• December 16 2004 House of Lords quashes Belmarsh powers on human rights grounds as “discriminatory and not proportionate to the terrorist threat”.

• January 26 2005 Home secretary Charles Clarke announces “control order” regime to replace the Belmarsh powers to “contain and disrupt those we cannot prosecute or deport”. They are used against domestic and foreign terror suspects and impose a surveillance regime up to but not including house arrest.

• February 28 2005 Sixty Labour MPs vote against control order powers, cutting government’s majority to 14 and triggering crisis with the House of Lords. The first control orders are used against 10 suspects who had been detained in Belmarsh prison.

• April 12 2006 Mr Justice Sullivan rules in the case of ‘MB’ that control orders are “an affront to justice” under the European convention on human rights, because a judge can only review the home secretary’s decision to impose them.

• June 28 2006 Mr Justice Sullivan in a second case rules that the control order regime imposed on six Iraqis of 18-hour curfews amount to a “deprivation of liberty” and are illegal under European convention on human rights.