Control Orders lite

Many media outlets are reporting today that Home Secretary Theresa May has “reviewed” Control Orders.

Certainly, they have been watered down and renamed. But, whilst any dilution of these oppressive and unjustifiable orders is to be welcomed, their continuation is completely wrong. The Orders, now replaced with "Terrorism Prevention and Investigation Measures", or – and this just trips off the tongue – “Tpims” – are Control Orders with a cosmetic makeover. Yvette Cooper is right. What’s been announced today is not the much-heralded (and promised) end of Control Orders – rather, the Government has simply modified Control Orders – meet the new boss, same as the old boss.

Control Orders were introduced when the courts stopped the government of the day imprisoning suspected foreign terrorists who could not be deported. That was the explicit justification for them given to Parliament. But today all the “controlees” are British. So what’s the justification for them now?

The current 16-hour curfews will be replaced by an "overnight residence requirement", typically of between eight and 10 hours. And the new powers will be limited to two years and will only be renewed "if there is new evidence that they have re-engaged in terrorism-related activities", which – depending on what will be considered to be “new evidence – is welcome.

But in many ways, the new Orders are worse than at present. These powers will no longer need to be reviewed every year – plainly restrictions against those labelled terrorists without any sight of the evidence against them are now permanent. Furthermore, the “overnight stays”, which might sound like a nice school trip but aren’t, will be monitored by electronic tags. And the rest of the package of unpleasantness is still at hand if the powers at be want to wield them: curfews and further restrictions on communications, association and movement could all be brought in as part of "exceptional emergency measures", the Home Office said.

Control Orders, or Tpims, as you prefer, are an anathema to basic liberty. You’re not anonymous, but your accuser is. They are based on an assertion from the Home Office that there are some known 2,000 people actively supporting terror in the country – of course, we can’t prove anything against you, but we know you’re up to no good – and a further 2,000 ‘known unknowns’; in a highly scientific fashion, the Home Office asserts that there’s the same number again of people they can’t identify, but are terrorists or supporters too. Let’s assume that’s all correct – 4,000 people, of whom 47 have ever been the subject of Control Orders (and of those, seven have absconded). Plainly, it’s absurd.

The orders undermine the presumption of innocence, a cornerstone of British liberty since Magna Carta, and effectively constitute punishment without trial. The ability of the executive directly to impose a control order represents a grave violation of judicial independence. Even the former security minister Tony McNulty – one of those originally responsible for the legislation – now admits that control orders are a ‘clumsy tool’ that should be abandoned.

It is a standing affront to the rule of law that, without charge, anyone’s liberty is curtailed. This isn’t a marginal curtailment either.  As I say, those under control orders have their freedom of movement and association limited to the point at which they are, essentially, under indeterminate house arrest. That freedom is curtailed not only without charge, but without even knowing the nature of the allegations against them, let alone the details of those accusations or the name of their accuser, and without any deadline at which such an order will expire.  It is truly Kafka-esque. The fact that it happens to a tiny proportion of people does nothing to justify it; if you are not free, I am not free. Once these things can happen in principle, they can happen to any of us – especially when there is no objective standard to which the state must be held or test the state must pass in order so to control you.

If those who support Control Orders are right in their allegations, then those about whom they speak should be tried, based on evidence. Absent such evidence and such trials, none of these people, against whom nothing to the criminal standard has been (or presumably, can be) proven should be on these orders. Either the state can prove something against you, or it can’t.  There is no in between.

Each time a case actually goes to court, the Government loses and another such order falls. Control Orders should be abandoned immediately, rather than defeated on an ad hoc basis as the Government loses case after case. It is unjust enough to limit the liberty of a person in this way – but to continue to do so, knowing that the case will be decided against the Government when it wends its way to court, but keeping them so ‘controlled’ until then, is morally bankrupt. It entails further months of unjustifiable action in each case, simply on the basis of which one gets to see the inside of a courtroom first. How can that be intellectually justified even for a moment?

The alternatives to Control Orders and the like – the use of intercept evidence and to charge those suspected of terrorism in open court – are outlined in Dominic Raab’s excellent pamphlet for Big Brother Watch, Fight Terror, Defend Freedom, downloadable here.

For now, the injustice remains. The violation of the presumption of innocence remains. No matter how serious a judge claims things to be, or how gravely he shakes his head – no assurance from a judicial source should be regarded as an acceptable substitute for a proper trial process. A judge is no substitute for a jury. It is simply never acceptable for the word of a servant of the state to be enough to lock you up – no matter how senior or supposedly well-informed he may be. There has to be an external, verifiable, testable validation process that stands between the state accusing you and incarcerating you – in this country, we have established an excellent system of doing that – it's called a trial.

So: nobody will be fooled by this childish sleight of hand – except perhaps the Lib Dems, because none are so blind as those who will not see – they can now pretend that they haven’t broken their manifesto commitment.

By Alex Deane