Control Orders: both government and Labour fail the test

By Brian Barder / @brianlb

As widely predicted, the coalition government’s review of the previous government’s counter-terrorism legislation has not had the cojones to recommend the outright abolition of the intrinsically flawed régime of control orders.

Even more disappointingly, nor has the Labour opposition. The government proposes to remove some of the system’s more atrociously repressive features, putting in its place what amounts to “Control Orders Lite”. The LibDems, until they joined the coalition with the Tories, campaigned for the complete abolition of control orders. Now all three major parties have formally accepted an entirely bogus justification for the continuation of arbitrary restrictions, imposed by a government minister, not by any court, on suspects whom the security authorities don’t want to, or can’t, prosecute because the key evidence against them is too sensitive to be made public in open court or even to be disclosed to the suspect.

This failure of nerve on the part of the Labour leadership falls sadly short of the promises made by Ed Miliband in two key speeches made since he was elected as leader. It doesn’t encourage optimism for a more robustly libertarian response to the Justice Secretary’s Green Paper on sentencing policy when that (mostly excellent) document is translated into draft legislation.

The reaction of the civil rights organisation Liberty to the control orders proposals is concise:

“Crucially, the orders will still be initiated by the home secretary – and the regime will continue to run outside the criminal justice system of investigation, arrest, charge and conviction. Though the conditions of punishment may be improved, control orders lite are still punishment without trial and we will be campaigning against them. We hope you’ll stand with us, and show the government that you’re not fooled by a rebrand.”

The Guardian editorial of January 27th commented that:

“the terms of these [control orders] restrictions are to be improved, and only a very small number of people may ever be subject to them, but the fact remains that control orders are not so much being scrapped as redecorated… Yvette Cooper, the new Labour shadow home secretary, would have done well to admit yesterday that the government is undoing some of the damage left by her colleagues.”

Lord McDonald, the (“small l” liberal) former Director of Public Prosecutions who ‘oversaw’ the Home Office review, highlights in a separate report another major defect in the control orders régime: the moment a suspect is placed under a control order it becomes far more difficult, sometimes impossible, to collect the necessary additional and useable evidence needed to charge and convict them in an ordinary criminal court so that they can be put where a convicted terrorist obviously belongs – in prison:

“[T]he State faces a clear dilemma when it confronts individuals believed to be involved in terrorism activity, but against whom there is insufficient evidence to prosecute. How are the public best protected in this situation? It is, on the evidence, precisely within this context that the Review is right to conclude that any replacement scheme for control orders should have as a primary aim to encourage and to facilitate the gathering of evidence, and to diminish any obstruction of justice, leading to prosecution and conviction. Current powers that fail this test should be amended so that they comply with it or, if their inability to comply is intrinsic to their nature, they should be abolished. It follows that powers created under any new scheme must also be judged against the criteria set by the Review itself: to what extent are they likely to facilitate the gathering of evidence, and to what extent are they directed towards preventing any obstruction of that process? It is, I think, only by following this quality mark that the Review’s conclusions can be true to the evidence it has gathered over the last few months, as well as to the twin goals of prosecution and public protection.” [Emphasis added]

But the greatest and most glaring defect of control orders is that they involve a government minister, not a court, imposing restrictions on the liberty of an individual who has been neither charged with nor convicted of any offence, who is thus entitled to the presumption of innocence, who is effectively being punished – in some cases extremely harshly – purely on the unconfirmed suspicion of the security services and who may well in fact be entirely innocent: who in many cases has not been told all or any of the reasons for the punishment being visited on them and thus has no opportunity to challenge the basis for officialdom’s suspicions: who has no way of knowing when their liberty will be restored or even whether it will ever be restored: who faces the fear and odium of her friends and work colleagues and even of their own family, all naturally assuming that these restrictions won’t have been imposed on them without good reason and that they must indeed be a terrorist; who knows that even if the restrictions are lifted at some future date, and even though they will never have been charged – still less convicted of any crime – the cloud of fear and mistrust cast over them by her control order will never be lifted.

We may well be surprised that in the light of this massive indictment the control order régime has not been either struck down by the courts as manifestly in breach of the individual’s fundamental human rights in common law, nor formally declared incompatible with the Human Rights Act. The judges of Britain’s highest court have however determined that while a person may not lawfully be deprived of her liberty on the mere suspicion of the executive without being charged or tried, her liberty may lawfully be restricted so long as the restriction is the minimum required for public security and the suspicion of the executive is not unreasonable – a spectacularly lower criterion than the requirement of proof beyond a reasonable doubt in a criminal trial. On just such a fine distinction between the deprivation and the restriction of liberty an individual’s whole future life, work, reputation and happiness may hinge. This is simply intolerable.

Overall the home office’s review is overwhelmingly positive. It proposes to correct a goodly number of the illiberal excesses perpetrated by New Labour, and New Generation Labour as represented by Yvette Cooper was right to welcome and support most of it. Even on control orders the review does remove the worst and most objectionable restrictions that can be imposed and to that limited extent it is also to be welcomed. But all the injustices inherent in the punishment of an individual on the mere suspicion of the government remain in the government’s new régime of Control Orders Lite, and these can be remedied only by abolishing the whole corrupt system. Abolition is what the home office and the coalition should have promised, and abolition is what a reformed Labour opposition committed to the restoration of justice and liberty should demand.

Shame on them both for their cowardly failure of nerve.