The politics of control orders
Jeremy Browne, perhaps the MP with whom Liberal Vision has most sympathy on many issues, has not had a good week. An appearance on Question Time last week saw him attacked unfairly for an ill-judged attempt to mock arguments against military co-operation with France. The more serious error from the internal party perspective however concerned his attempt to add nuance to the party’s opposition to Control Orders.
Control Orders were introduced by the 2005 Prevention of Terrorism Act. They replaced Part IV of the 2001 Anti-terrorism, crime and security Act that allowed the Home Secretary to detain foreign nationals without trial indefinitely pending deportation. Itself a post 9-11 measure bought into try and sidestep the UK’s obligation not to deport people likely to be subject to torture… and struck down accordingly by Law Lords as incompatible with the European Convention on Human Rights (ECHR)
Control Orders themselves, which are designed to be a ‘prison without bars’, by issuing restrictions to movement and activities on the target, have been subject to numerous similar challenges and are rarely used. They are expensive, costing over £200k per issue, and around £8m in fees relating to the legal challenges. Many Conservatives and the Liberal Democrats have opposed them on cost, effectiveness and civil liberties grounds in Parliament.
The Coalition though, facing a decision on whether to use them days into the new government, opted to do so, then put the policy into review with other counter terrorism measures.
In that respect Jeremy’s explanation of the Government’s policy position on QT was correct. Control orders will be reviewed, the government will then decide their future on the basis of discussion and evidence from that review. Cabinet collective responsibility demands Ministers abide by and defend government decisions publicly even when they do not privately agree with them.
The sticky wicket though is that this is that for most liberals this is fairly fundamental breach of civil liberties not a nuanced issue of the line between “liberty and security” subject to an impact assessment. It is also a decision on a process to take a decision, not a decision.
Does collective responsibility in coalition mean you cannot state your previous party policy before explaining the process to reach a consensus with a party with a different policy? I suspect not, and Chris Huhne took a different line very recently.
On the substance of the issue – the right to fair trial; to know of what it is you are accused, to legal representation, and due process; are all undermined by control orders. This was excused by the previous government under article 15 of the EHCR that permits derogation of other rights on pretext of “war or other public emergency threatening the life of the nation”.
In most cases of terrorism outside conventional war a reasonable person would think of this as the ‘ticking bomb scenario‘. An explanation that conjures up images of imminent attack and capture of a suspect who can disclose information vital to stop the plot, and the measures required to extract that information.
It does not fit so well with restrictions to liberty over a period of many years without recourse to a fair trial. Less preventing a ticking bomb, more preventing someone buying an alarm clock. Something for which covert surveillance and intelligence is deemed sufficient for all other crimes.
It also does not help that the ‘it saves lives’ line is also used by those in favour of torture as a derogated right of the state, most recently George Bush. Liberals would not typically decide whether waterboarding was right or wrong on the basis of a review of whether it worked.
The other justification by the UK security services is that fair trials for those under control would put sensitive intelligence sources at risk. This is also used to support their (globally) almost unique opposition to the use of intercept evidence in courts.
It is a position open to significant abuse. It also allows the services to cover up errors and malpractice and it might be summarised as a preference for operating under a mandate of “trust us we’re the security services”.
It also means that if the current review uncovers compelling evidence that control orders work, this evidence will be sensitive and not published, lest it compromise security sources. An endorsement of control orders following the review could then be presented as “trust us we’re the Government”.
For liberals this is the problem. Government and their agencies cannot be trusted without question. Fair trials and public scrutiny of ministerial decisions matter and should be defended, robustly.
For Liberal Democrat Ministers in Government, the tension between their liberty to speak up, and security of the coalition agreement will always be difficult. They should not though present themselves as though operating under some kind of control order.