Control Orders lite - the cosmetic coalition

Control orders place individuals suspected of being an extremist threat under a variant of house arrest without them being charged or being able to defend themselves. They breach a fundamental principle of justice the government said it would restore. It hasn't.
Victoria Brittain
29 January 2011

The coalition government’s new proposals to change some of the constraints on the lives of those on Control Orders are deeply disappointing, if that is how we can describe changes that are cosmetic.

They do not deal with the fundamental issue of of justice and liberty - the use of secret evidence and punishing someone without them knowing the charge against them. The proposed changes do nothing about the stringent conditions of more than a dozen people held on deportation bail, nor those affected by financial sanctions. In addition, these new measures are to be permanent, unlike the previous regime, which at least had to be brought to Parliament every year for renewal, when there was at least the theoretical possibility of MPs challenging what was being done.

Mrs May’s announcements are a political lifeboat pushed out to the Liberal Democrats. While they are  a wholly welcome snub to the previous government’s obsession with holding people without charge for 28 days, by returning the limit to 14 days, the same old ability of the security services to hold the government in thrall to fear, continues to underlie these proposals.

No one disputes that terrorism has scarred British society in a particular way since 9/11, and that threats still exist. But, as the Home Office review by Lord Macdonald says, while stressing the importance of investigation, the judicial system is the central plank of dealing with it. He wrote,

The reality is that controlees become warehoused far beyond the harsh scrutiny of due process and, in consequence, some terrorist activity undoubtedly remains unpunished by the criminal law. This is a serious and continuing failure of public policy.

He goes further in suggesting the consideration of a new scheme in which a court would only grant restrictions  against suspected individuals in circumstances where

  • The Home Secretary has reasonable grounds to believe that a named individual is engaged in terrorist activity;
  • In the view of the Director of Public Prosecutions, a criminal investigation into that individual is therefore justified.

What Lord Macdonald calls “the harsh scrutiny of due process” is exactly what is needed – for the security services as well as for suspects. The fact that all those held on control orders or deportation bail on the strength of secret evidence known only to the security services and not to the person concerned, is manifestly unjust.

Control Orders were invented as a response to the House of Lords decision that a dozen Muslim men who had come to Britain as refugees and been picked up after 9/11 (but never questioned) and held in Belmarsh prison, could not be held indefinitely.

Subsequently the orders became a handy way of removing people, many of them later British, from the British scene, by a house arrest similar to that used under the apartheid regime. It has taken nearly ten years, several suicide attempts, broken families, and children scarred for life, for Control Orders to become a scandal, which the coalition government pledged to deal withIt remains to be seen how the details of the new “Contro Orders lite” will work. For instance, in the apparent relaxation of the previous ban on computers (which prevented many children managing home work) will the men be allowed to work – ie to enter places where unvetted computers exist?

And is the government really proposing to extend the pernicious system known as Special Advocates - the hand-picked lawyers who may see secret evidence supplied by the security services but not communicate it either to the person concerned or his lawyers?

This is the system in place in the Special Immigration Appeals Commission (SIAC). Siac was established after the government lost a case in 1996 at the European Court of Human Rights, precisely on the issue of unfairness, because appellants or their lawyers could not hear all the evidence relied upon by the Home Secretary. Distinguished lawyers, such as Ian McDonald QC and Rick Scannell of the same chambers, resigned in protest from the Special Advocates scheme back in 2005. SIAC is Kafka country and no wonder Mrs May has not dived into it.

The dozen families who are affected by deportation bail conditions are, of course, not British, but that does not mean we should not be shocked that men can be held on 24 hour curfew (as one was), or allowed out only for two two-hour periods during the day, have a restricted area where they may go, may not go the mosque during Ramadan or Eid, may have no computer in the house even in one case where the father was illiterate and the children needed it for homework, can be forbidden to speak on the phone to someone who had been their main support during a mental breakdown, know that police or the company which controls their electronic tags can enter the house at any time of day or night, and there is much more…..causing acute suffering and a loneliness beyond description.

In addition some of these men have then had their bail taken away and are currently in Long Lartin high security prison. Neither they nor their lawyers were ever told why this decision was made or what is the evidence against them. As appeals on many aspects of their detention have rambled unsuccessfully through the British courts it is unsurprising that Bleak House became a favourite book for some of them and they felt quite at home with Jarndyce v Jardynce.

In four current cases only a European Court of Human Rights, the decision is due soon, stands between them and extradition to the United States and the likelihood, some would say certainty, of long pre-trial detention in conditions that Amnesty or Human Rights Watch do not consider acceptable, and trials that many consider most unlikely to be fair.

The Liberal Democrats want to do better than Labour on civil liberties, Conservative Ministers like Dominic Grieve and William Hague wanted to know about some of these dark and difficult areas while they were in opposition. They should know better than to embrace cosmetic changes.

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