Leading article: A timely legal rebuke to this official culture of secrecy

The Law Lords were right to find fault with the system of control orders
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The Independent Online

When it comes to dealing with terror suspects, this Government seems incapable of learning from its mistakes. After the September 2001 terrorist attacks on New York and Washington, ministers were panicked into locking up foreign suspects without a proper trial. In 2005 the Law Lords ruled that this emergency detention contravened the European Convention on Human Rights.

The Government's response was to subject these suspects to a system of control orders, which drastically curtailed their movement and freedom of association. And now those control orders have also been found legally flawed by a panel of Law Lords.

The new Home Secretary, Alan Johnson, has promised to "consider this judgment and our options carefully". We shall have to wait and see what emerges but considering the tortuous history of this case it is hard to be optimistic about the chances of the Government coming up with a sensible plan of action.

Yesterday's unanimous verdict ought not to have come as a surprise, given the opaque nature of the control-order system. As Lord Phillips of Matravers, the senior law lord on the case, put it: "A trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him." It is not only the European Convention on Human Rights which enshrines this principle in our law. The right of the accused to an open trial goes back to Magna Carta.

In recent years ministers have attempted to portray opponents of control orders as insufficiently serious about the terrorism threat facing Britain. Such attacks would have more credibility were it not for the fact that seven individuals have absconded while under supervision in the past three years. Control orders have been a classic manifestation of this Government's tendency to ineffective authoritarianism.

Ministers ought to face up to the fact that they can only deal with these terror suspects in two ways: either put them on trial or allow them to go free. The first option would be preferable. Assuming that the police and security services have not been utterly incompetent or corrupt, there is probably a case for treating these individuals as a potential threat to public safety.

The barrier to such prosecutions is the fact that phone-tap evidence – which we must presume provides the bulk of the case in such instances – is inadmissible in conventional courts.

The intelligence services claim that opening up such evidence to public scrutiny would expose the methods of the secret services and compromise their work. Yet this has not been the experience of the US, which has long allowed intercept evidence in its courts. And the opposition parties have signalled their willingness to accept safeguards in any legislation to maintain the privacy that the intelligence services need to do their job.

But ministers have been dragging their feet. Despite Gordon Brown's acceptance of the recommendations of the Chilcot report last year, which made the case for allowing some intercept evidence to be used in courts, nothing has been forthcoming.

It is difficult to avoid the conclusion that, for this Government, maintaining the veil of secrecy in its counter-terrorism activity is a higher priority than maintaining the rule of law. Until they change that mindset, ministers should expect more humiliating rebukes of the sort they received yesterday from the Law Lords.