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The future of control orders

A friend of mine tweeted this morning: “254,998,923 laptops taken out of hand luggage and then 254,998,923 put back into hand luggage: success or fail?”

On issues of national security, many members of the general public should like to believe that they have an integral influence in matters of national security, the legislators, we all admit, decide upon national policy. Ultimately it is the Home Secretary, Theresa May MP, who is able to propose legislation on the basis of her advisors, the think tanks, the public, the media, the police, the rest of the judicial system, and of course the intelligence services MI5, MI6. Obviously, it is impossible to ignore the raft of events, such as 9/11 and the Mumbai bombing. There is in face a growing notion internationally, irrespective of political affiliations, that in the wake of September 11th, many civil liberties had been curtailed or suspended. There has been historical disagreement concerning how much risk to national security or civil liberties should be taken.

The need to achieve an appropriate balance of these seemingly competing goals was evident. In the USA, lawyers from the Department of Homeland Security, Federal Bureau of Investigation, and the U.S. Army called for aggressive prosecution of the terrorist proven suspects, while lawyers advocating civil liberties argue strongly for the safeguarding of individual rights, lest we cede victory to terrorists through the compromise of principles that define our view of a liberal democracy.

We are surprisingly at one here with the U.S., reflecting a strong entrenchment of our law in European law as a result of the European Communities Act (1972) (as amended), and numerous subsequent treaties. The legal notion of ‘proportionality’ originally developed in European Law, but it has been readily applied in English Law in the House of Lords and Supreme Court. One specific definition of proportionality given by Lord Lowry in the leading British case ‘Brind’, which examined the principle as one that requires a reasonable relation between a decision, its objective and the circumstances of any given case. This concise definition shows how proportionality is a theory that is ultimately intuitive to human nature.  A vast majority feel that Labour went too far in the counter-terrorism legislation, which is a massive own goal in that one of the first achievements of Tony Blair was to introduce the Human Rights Act (1997).

In fact, Labour has had terms in coming to terms with their past on crucial matters of civil liberties, in lengths of detention and ID cards. For example, officers used Section 44 of the Terrorism Act 101,248 times but just 506 of those stopped were taken into custody and none on suspicion of plotting terror attacks. Furthermore, Home Office data provide that no terror suspect was held for more than 14 days before being charged, just half the 28-day limit brought in by the last Government. Shami Chakrabarti, of civil rights group Liberty, insisted Section 44 was a “crude and blunt instrument” that was also counter-productive. Shami Chakrabarti further said: “It costs us dearly in race equality and consent=based policing with very little in terms of enhanced security.” I fully agree.

Another bone of contention are ‘control orders’, also introduced under 2005 anti-terrorism legislation. Ministers have to sign an order to place a terrorism suspect under close supervision that some say is similar to house arrest. The orders were introduced after the then Law Lords declared that the previous system of detaining foreign terrorism suspects without trial, or without prospect of deportation, breached human rights. The previous Labour government said it still needed a mechanism, which would allow it to control the lives of some suspects whom it said it could not prosecute because of the rules over the use of secret intelligence in trials.

Control orders were originally introduced as an alternative to putting people in prison, that originally was supposed to not leave individuals suffering from a breach of liberty and personal freedom (1995). Obviously, curtailing this liberty and personal freedom has to be a necessary, balanced and proportional response to a threat of national security, and the Law Lords have thus far said that control records are legal. However, not everyone sees it this way. The issue of control orders, under which terror suspects are placed under “virtual house arrest”, is the one of the most sensitive civil liberties issues for ministers as opposition to Labour’s authoritarian counter-terror policy was seen as part of the glue that made the coalition possible.

Tom Brake MP, the co-chair of the Lib Dem home affairs parliamentary party committee, has said there was no evidence to suggest that control orders were effective in preventing terrorism. The other signatories of the letter, Baroness Sally Hamwee, and Lord Martin Thomas, represent Lib Dem peers. As the English legal system is a system of precedent, I feel that it any changes to the law could be introduced, but it would be their Lordships’ prerogative to decide whether any subsequent changes to the law are legal or not. And I fully trust Lords Hoffman, Neuberger and Baroness Hale, amongst others, to analyze with the legal issues with great precision if or when the time should come.

According to the most up to date figures for January 2010, there are 12 control orders in force – three fewer than a year before. Some 45 people have been subject to the controls since the system was created. Six of the foreign nationals held under the restrictions have been deported. The political situation is messy, as reflected in a rather informal conversation between Baroness Kennedy and Theresa May on the Andrew Marr show this morning. Liberal Democrats have openly warned David Cameron for the first time that any decision not to scrap control orders would jeopardise the coalition’s civil liberties credentials.

Senior Lib Dem backbenchers and peers have also written to Downing Street pressing for the limit on detention without charge to be cut from 28 days to 14 days, arguing that two-weeks is a “wholly adequate” time to bring charges, even in the most complicated cases of multiple terrorist attacks. The intervention from Lib Dem MPs and peers comes after an intense lobbying campaign by the security services. Jonathan Evans, the head of MI5, recently wrote to Cameron saying that he could not guarantee the safety of the public if the control order regime was scrapped. Whitehall officials confirm that MI5 has played its “full part in the debate”. The review of counter-terrorism powers was set up immediately after the general election, with a specific remit to look urgently at the future of control orders and the wider matter of counter-terror measures and programmes.

The home secretary, Theresa May, is thought to have recently supported the retention of control orders as a necessary intervention despite repeated interventions by Nick Clegg, whose Lib Dem manifesto clearly had called for them to be scrapped. It feels as if a pendulum over civil liberties is still in damped smooth harmonic motion, but at least the review and the Supreme Court will help the UK legislature and public reach a stable equilibrium.

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