The debacle of control orders
There are 2 lessons to be learnt from the absconding of the 3 men held under control orders. One is simply that as a form of detention without trial, it is simply not working. The second, in the light of the first, is that the whole concept of control orders should be re-opened and significantly altered.
Current procedure is that after the initial hearing in open court, when the public facts alleged the suspects are disclosed, the case then proceeds to closed session, where the full evidence against the suspect is made know to a Special Advocate who acts for the suspect. But this Special Advocate is not allowed to communicate this to the suspect in order to check whether the suspect has an alibi or can refute the allegations.
In order to move away from the whole control order debacle, we should now implement different rules.
At present, it is the Security Services and the Home Secretary who determine that a suspect cannot be given a normal trial and that the Special Advocate procedure should be used instead. In effect, this makes them judge and jury in the same case. What we should now be doing is operating new rules which require that all the evidence is normally made available to the suspect, so that he has a chance to refute it unless a senior judge sitting in camera to whom the case is referred is convinced, on the basis of advice from the Security Services and the Home Secretary, that certain evidence cannot safely, on the grounds of national security, be made available to the suspect.
This would almost certainly reduce the applicability of the Special Advocate procedure and the use of control orders to a very small number of cases. And even where the judge is not persuaded, it would not prevent the Home Secretary, if they did not then wish to proceed, from withdrawing the application for the control order until at least more evidence was available and in the meantime to rely instead on the considerable range of surveillance techniques already available.
This would not only provide the fairest reconciliation of the need for national security with the rights of the individual. It would also minimise the fiasco which the use of control orders is in danger of descending into.