Terror Law Review:
New terror suspect rules are ‘control orders lite’
Wednesday, 26 January 2011
Liberty, the civil liberties campaign group, accused the Government of bottling the decision on the future of counter-terrorism powers, saying that, “spin and semantics aside, control orders are retained and rebranded, if in a slightly lower-fat form”.
The new powers announced by Home Secretary Theresa May will no longer need to be reviewed every year, a clear signal that the restrictions against suspected terrorists against whom prosecutions cannot be brought are here to stay.
The term “control order” has been scrapped and will be replaced with “Terrorism Prevention and Investigation Measures”, or Tpims, Mrs May said.
But Shami Chakrabarti, director of Liberty, said: “When it comes to ending punishment without trial, the Government appears to have bottled it.
“As before, the innocent may be punished without a fair hearing and the guilty will escape the full force of criminal law. This leaves a familiar bitter taste.
“Parliament must now decide whether the final flavour will be of progress, disappointment or downright betrayal.”
Liberty said the plans amounted to a “control order-lite” which could lead to “potentially punishing the innocent while the truly dangerous may remain at large in the community”.
Shadow home secretary Yvette Cooper also warned that the plans were a “political fudge” and the review of counter-terrorism powers left gaps which raised “serious questions about security and resources”.
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”, the Home Office said.
But the decision to scrap 16-hour curfews but bring in overnight residence requirements, typically of between eight and 10 hours, were greeted with guffaws of laughter from MPs in the Commons.
The overnight stays will be monitored by electronic tags and there will be an additional level of flexibility with the suspects allowed to apply to spend a night away from their main residence.
Asked about the difference between curfews and overnight stays, a Whitehall official said the overnight stays could be much shorter and more flexible, allowing arrangements to be made for a suspect’s shift patterns at work or other needs.
The new powers will “more clearly target and focus those limitations”, while still enabling authorities to ban a suspect from visiting a particular building or street, Mrs May said.
The Tpims will also give greater freedom of communication and association than the control order regime, which was described as being akin to house arrest by critics.
Limited use of the internet on a home computer will also be permitted, provided that all passwords are provided to the authorities.
But curfews and further restrictions on communications, association and movement could all be brought in as part of “exceptional emergency measures”, the Home Office said.
The issue is particularly fraught for the Liberal Democrats and Deputy Prime Minister Nick Clegg, who campaigned at the General Election on a pledge to abolish control orders completely.
In his review of counter-terrorism powers, Lord Macdonald QC said he would regard the use of curfews and tags as part of a replacement regime for control orders as “disproportionate, unnecessary and objectionable”, adding they would “serve no useful purpose”.
Asked if she accepted that the new plans would still impose on civil liberties, Mrs May said: “What I accept is that sadly there are a small number of cases where we are not able to prosecute people but we do need to take measures to maintain national security and keep people safe.”
A total of eight terror suspects are currently subject to control orders but putting them under surveillance instead would be difficult with limited resources.
Round-the-clock surveillance of just one suspect can involve up to 60 officers, it is understood.
Mrs May went on: “The threat from terrorism remains serious and complex and I have always said that this Government’s first priority is to protect public safety and national security.
“But for too long the balance between security and British freedoms has not been the right one.
“The measures we are announcing today will restore our civil liberties while still allowing the police and security services to protect us.
“They are in keeping with British traditions and our commitment to the rule of law. I also believe they will restore public confidence in counter-terrorism legislation.”
The current control order regime will remain in place until the end of the year while Parliament considers the legislation and replacement Tpims are brought in, the Home Office said.
Mrs May added that an unspecified amount of “new money” would also be made available to the security services and the police for counter-terrorism activities over the four-year period of the Government’s spending review.
Other plans outlined in the review of the UK’s counter-terrorism powers today include ending the indiscriminate use of terrorism stop-and-search powers and a stronger effort to deport foreign nationals involved in terrorist activity.
The Government also plans to end the use of surveillance powers by local councils to investigate low-level offences.
New measures will also be brought in which will require councils to apply to get approval from magistrates before using such powers under the Regulation of Investigatory Powers Act 2000.
The end of 28-day detention without charge, which was allowed to lapse back to 14 hours as of yesterday, was “one of the key issues that people are concerned about”, Mrs May said.
“What we set out to do is to make sure that we’re restoring liberties but we’re maintaining the ability to protect the public.”
Tom Brake, co-chairman of the Liberal Democrat parliamentary committee on home affairs and justice, said: “Sanity and justice have been restored to British life.
“Control orders are gone, 28 days detention without charge is gone, indiscriminate stop and search is gone and the abuse of anti-terror powers by councils to pursue petty offences is over.”
The counter-extremism think-tank Quilliam welcomed the move to change the control order system while recognising that scrapping it altogether was “not feasible and may increase the risk of terrorist attacks”.
Maajid Nawaz, the group’s director, said: “At the same time, we should remember that there is no substitute for giving people a fair and open trial.
“British traditions of justice should be upheld and defended wherever possible. Control orders – or whatever system replaces them – should remain only a last resort.”
But Alex Deane, director of the pressure group Big Brother Watch, said: “Yvette Cooper is right. What’s been announced are simply modified control orders – meet the new boss, same as the old boss.”
“Nobody will be fooled by this childish slight of hand – except perhaps the Lib Dems who can now pretend that they haven’t broken their manifesto commitment.”
:: Mrs May also announced that the Government was “seeking to find a practical way to allow the use of intercept evidence in court” to tackle terrorism and other serious crime.
The issues were “complex”, she told MPs, but work will “focus on assessing the likely balance of advantage, cost and risk of a legally viable model for use of intercept as evidence compared to the present approach”.
A report is expected by the summer.
Defending the changes, Mr Clegg said the new overnight residence rules were “exactly” like the expenses requirements placed on MPs and peers.
There had been “fundamental” changes to the old regime, which resulted in a “proportionate response which ensures that we keep the British people safe but do so in line with the finest traditions of due process and equality before the law”.
Suspects should be able to “lead a relatively normal life”, he said.
“We ask MPs and peers in the House of Lords to show that they actually stay overnight in a place in which they say they are living,” Mr Clegg told the BBC News Channel.
“Using tags, which by the way is used by thousands of people under bail conditions in the criminal justice system already, we want to make sure that if someone says they live in location X, they do indeed spend some time overnight in that location.
“That, I think, will strike most people as a reasonable thing to ask of people for whom a judge has already agreed there is evidence they want to do damage to the British people.
“Crucially, however, they will be able to go to other places, they will be able to meet other people, they will – unlike under the existing system – be able to lead a relatively normal life but, of course, in a way which doesn’t allow them to cause damage to the British people.”
Mr Clegg denied failing to secure meaningful change to the previous regime.
“We can play this game deciding whether it’s similar to the old regime or not. The reason I don’t think it is is because it’s changed in fundamental design,” he said.
“They cannot be kept in place, these measures, permanently – they are time-limited; they are subject to complete oversight by a judge; house arrest, through very, very draconian curfews or by relocating people to other part of the country go.
“They will be able to work, they will be able to study, they will be able to use mobile phones, they will be able to use the internet in a way they weren’t under the old system.”
Tim Hancock, campaigns director of Amnesty International UK, said that while the proposals were “less drastic than the previous control orders regime”, Tpims would still impose “significant restrictions on the rights to liberty, privacy, expression, movement and association”.
John Wadham, legal director of the Equality and Human Rights Commission (EHRC), said: “The previous control order regime didn’t get the balance right between protecting the public and protecting civil liberties.
“It remains to be seen whether Tpims will achieve this in practice and we will be keeping their use under careful scrutiny.”
- Control orders: terrorism suspects to be given greater freedoms (telegraph.co.uk)
- Government ‘bottled’ control orders (mirror.co.uk)