By Jon Silverman Legal affairs analyst

The government faces 'difficult' choices over control orders

The government has attracted harsh criticism over the escape of two terrorism suspects under control orders.

What responses will ministers be discussing now?

On one point, the government and its human rights critics can agree.

As a weapon of security, the control order is a poor second-best to the conventional legal process.

But still, in the light of the escapes, ministers face a difficult three-way choice.

Overturn

They could re-impose a much more rigorous regime which would amount to deprivation of liberty under the terms of the European Convention of Human Rights and thus be obliged to introduce an order derogating from Article 5 of the Convention.

They could overturn the ban on the use of intercept material in court which has existed on a statutory basis since 1985 and informally for far longer.

The security services have previously argued against allowing intercept evidence in court, saying their sources could be compromised.

The change might help secure convictions against suspects who can't be charged at the moment.

Or they could do neither and continue with the present control order regime, hoping to face down the media and political criticism which has painted the Home Secretary and security service as ineffective and incompetent.

One of the two suspects who has disappeared is an Iraqi who, along with five other men, won an Appeal Court ruling in August which meant that his curfew conditions had to be relaxed.

He and the other five had been subject to restrictions which confined each to a named address, not their own, for 18 hours a day.

It is thought that was reduced to 14 hours along with restrictions on communications and some form of monitoring which may have included an electronic tag.

Competence

At some point after the more relaxed regime was introduced, he went on the run.

A control order unit in the Home Office is already grappling with the problem of what to do next, as well as reviewing what went wrong.

Although the Home Secretary is taking the political flak, M15 and Special Branch must also be in the spotlight for allowing the two suspects to disappear.

Barrister and academic Dr Amir Majid said it would be wrong for the government to use the escapes as an excuse for derogating from the European Convention.

"What on earth were the security service doing?" he said. "Surely, the key question is the competence of the people doing the surveillance rather than going over the top by either derogating or bringing in a tougher regime."

Like many, Dr Majid favours the use of intercept material in court as a way out of the impasse.

The UK is the only common law jurisdiction which prohibits completely the use of intercepts in criminal trials.