From detention without trial for foreigners to control orders for all

At the risk of boring everyone half to death, I can’t resist another interim* comment on the outcome of the notorious ping-pong match between the House of Commons and the House of Lords a few days ago over what is now the Prevention of Terrorism Act, with its provision for ‘control orders’ made by the home secretary to limit, extremely drastically, the liberties of anyone whom he ‘reasonably suspects’ of being involved, even peripherally, in terrorism or with terrorists. The infamous Bill was eventually squeezed through the Lords when the Conservatives abandoned the LibDems and Labour rebels and decided to accept the ‘compromise’ belatedly offered by Charles Clarke, under which he will present yet another anti-terrorism Bill to parliament later this year, this time allowing reasonable time for it to be submitted to detailed scrutiny and debate, and providing an opportunity for parliament to inject into it amendments to, or even the repeal of, the control orders Act. This was implausibly represented as an adequate substitute for a sunset clause under which the Act would automatically expire in a year’s time unless re-enacted with suitable amendments.

Control orders can impose the most draconian restrictions on the suspect’s ability to lead a reasonably ordinary life – forbidding him to use a mobile telephone or to access the internet, or to arrange to meet anyone without home office permission, or to leave his home (quite likely to be a small and overcrowded flat) between 7 pm and 7 am: and requiring him to allow his home to be searched at any time, to wear an electronic tag at all times, and so forth. Perhaps even worse, they may also destroy a person’s reputation and his family and friendships, his employability and indeed his ability to continue to live in the same neighbourhood when it’s all over (if ever), by indelibly labelling him a terrorist, whether he is guilty or innocent, all on the basis of the ‘suspicions’ of the security services and a politician. What about ‘due process’, as guaranteed to the Americans by their constitution? We already have ample provision, wherever there are reasonable grounds for suspecting someone in the UK of terrorism, for putting him on trial on one or more of the sweepingly defined terrorism charges embodied in the many recent laws passed before as well as after 9/11. As it is, the control order process evades virtually all the safeguards against the wrongful destruction of the life and reputation of an innocent man: trial by judge and jury, proof beyond a reasonable doubt, even the presumption of innocence. Despite the demands of a sizeable majority in the upper House, the orders are made by a politician, not a judge (unless the order imposes full-time house arrest, unlikely to arise since it would involve another derogation from the provisions of the European Human Rights Convention which would almost certainly be quashed by the law lords in the way they quashed the last one). The scope for review of the control orders by a judge is extremely limited and restores none of the safeguards.

The House of Commons has hardly enhanced its reputation as an effective forum for holding a power-hungry executive to account by tamely and repeatedly voting for this suspension of habeas corpus, an assault on basic principles of justice that go back to Magna Carta. And it’s all unnecessary: the problem over sensitive evidence that can’t safely be disclosed to the suspect or revealed in open court could readily be solved by giving special powers to the judge in terrorist cases to disguise the source of sensitive information. It would be nice, in a way, to believe that this monument to injustice can be ascribed to our ministers’ panic over the terrorist threat and their fear that if and when there’s eventually a terrorist atrocity in Britain, they will be blamed for not having done enough beforehand to prevent it. But I suspect the true explanation is that the state security apparatus is exploiting ministers’, the tabloids’ and the public’s fears, rather than actually sharing them or legitimately seeking to allay them.

* This is an "interim" comment because there’s much, much more to be said and written about all this before parliament has a chance to re-visit it when the new anti-terrorism Bill is launched later in the year — assuming, of course, that there hasn’t been a change of government in the meantime….