With a month to go, Blair blames ‘society’ and proposes yet more draconian police powers
The definitive comment on the ill-fated Control Orders régime, which almost everyone agrees is hopeless (but for different reasons), appeared in The Register on 25 May, written by John Lettice:
Control order regimes meanwhile were brought in because the government's previous 'solution' of indefinite prison detention without trial was deemed to breach the European Convention on Human Rights, and because the security services did not have sufficient resources to monitor 'dangerous' suspects loose in the community. Pause briefly to consider the eccentricity of that last claim. Fairly recently the number of terrorism suspects being monitored by MI5 was claimed to be in the region of 2,000, while the number of people subject to control orders would have totalled 17 if they could manage to keep hold of all of them at once. Six are currently AWOL. It is not clear why M15 has the resources to monitor 2,000 people, but lacks the resources to monitor 2,017 people. Nor, if people under control orders are a bit less dangerous than people directly monitored, is it clear why there are 2,000 of the more dangerous ones but only 17 of the less. What strange statistical model does this distribution conform to?
Whatever, we have three people who, if they're dangerous at all, are dangerous because they want to leave the UK and be dangerous somewhere else, so we control them with a system that they can walk out of any time they want, and the only thing impeding their progress out of the UK (if that's what they want to do) is the fact that we've confiscated their passports.
Now Mr Blair, writing in Rupert Murdoch's Sunday Times on 27 May, exactly one month away from the end of his premiership, utters a self-pitying cry of frustration and anger directed at the judges, the European Convention on Human Rights, the opposition parties, the human rights organisations and, most bizarrely of all, "society", all of whom have apparently been conspiring to prevent him from strengthening our security at the expense of the human rights of a lot of blood-stained terrorists:
After September 11, 2001, in common with many other nations, we passed new antiterror laws… We gave ourselves the ability, in exceptional circumstances, to detain foreign nationals who we believed were plotting terrorism but against whom there was insufficient evidence to prosecute. It was an important power. They were, of course, free to leave Britain. … The ability to detain foreign nationals gave our services the ability to focus even more resources on the surveillance of British nationals who were a threat. It also sent out a strong signal of intent. In December 2004 these laws were struck down by the courts. In his famous judgment Lord Hoffmann said there was a greater risk to Britain through the abrogation of the foreign suspect’s civil liberties than through terrorism.
So we were forced to opt for the much milder remedy of control orders, applicable to both foreign and British nationals. These do not involve detention. They impose some limits on the individual’s freedom. They are better than nothing and have utility – because otherwise the individuals would have to be subject to even more intensive surveillance. They were, however, much weaker than we wanted, perpetually diluted by opposition amendments, constantly attacked on civil liberty grounds.
In addition, after September 11, and again after July 7, we have tried continually to deport foreign nationals who were either engaged in or inciting extremism. Again and again in court judgments we were forced to keep them here… And, of course, we lost the crucial vote on 90 days’ precharge detention, despite offering a week-by-week court hearing throughout the 90 days.
…we should remember that consistently over the past few years, and even after July 7, attempts to introduce stronger powers have been knocked back in parliament and in the courts. Indeed recently it was said, again in a court case, that unless the British government could prove that a foreign national suspect would not be at risk of mistreatment in his own country, we were obliged to keep him here. So the fault is not with our services or, in this instance, with the Home Office. We have chosen as a society to put the civil liberties of the suspect, even if a foreign national, first. I happen to believe this is misguided and wrong. If a foreign national comes here, and may be at risk in his own country, we should treat him well. But if he then abuses our hospitality and threatens us, I feel he should take his chance back in his own home country.
As for British nationals who pose a threat to us, we need to be able to monitor them carefully and limit their activities. It is true that the police and security services can engage in surveillance in any event. But this is incredibly time-consuming and expensive, and even with the huge investment we have made since 2001, they simply cannot do it for all suspects. Over the past five or six years, we have decided as a country that except in the most limited of ways, the threat to our public safety does not justify changing radically the legal basis on which we confront this extremism.
Their right to traditional civil liberties comes first. I believe this is a dangerous misjudgment. This extremism, operating the world over, is not like anything we have faced before. It needs to be confronted with every means at our disposal. Tougher laws in themselves help, but just as crucial is the signal they send out: that Britain is an inhospitable place to practise this extremism.
So because it's "incredibly expensive" to place suspects (against whom not enough admissible evidence exists to warrant charging them, even with one or more of the sweepingly defined offences created since 9/11) under ordinary police or security service surveillance, the whole cumbersome and objectionable apparatus of Control Orders has been established — and since the orders became available, how many of them have been made? Answer: 22. How many are currently in force? Answer: 17. How many of the 17 subjected to current orders have so far simply disappeared? Answer: six, more than a third.
It's time Parliament abolished this farcical and unjust system and insisted that if there are solid enough grounds for depriving this handful of suspects of their basic liberties, there must be solid enough grounds for charging them and putting them on trial. If the evidence against them is too sensitive to be heard in open court, let it be heard in camera, or so edited as to conceal its source. Let intercept evidence be made admissible. If necessary, let's have special procedures for protecting the safety of informers. Remember that since control orders became law in the 2005 Prevention of Terrorism Act, fewer than two dozen individuals have been subjected to them. Such is the scale of the threat such people pose.
As for the prime minister's view that if a foreign national who's "at risk" — i.e. of torture or other inhuman treatment, even of death — in his own country "abuses our hospitality and threatens us, I feel he should take his chance back in his own home country", it's hard to know whether this is Mr Blair's serious and considered view, in which case he seems to be advocating the deliberate breach of our international obligations under various Conventions to which Britain is party and which there's absolutely no possibility of amending in the way he wants — a curious position for a qualified barrister, let alone a head of government in a democracy, to adopt; or else it's a piece of shameless and irresponsible demagoguery that belongs more to the Sun or the Daily Mail, although admittedly the Sunday Times is these days not much better than either.
Not content with whingeing about the frustrations he has suffered from libertarians, Lib Dems and Conservatives, Labour lefties, Shami Chakrabarti and her allies, judges and 'society', our lame duck prime minister, with barely 30 days of his premiership left, now launches proposals for yet more anti-terrorist legislation:
The absconding of three people on control orders because of suspicion of their involvement in terrorism has, once again, thrown into sharp relief the debate about terrorism and civil liberty. Within the next few weeks we will publish new proposals on anti-terror laws. Our aim is to reach a consensus across the main political parties.
Within a few weeks? Who is this "we"? Not, surely, Mr Blair and Dr Reid, for the good doctor has announced that when Blair goes, he goes too, a decision of the kind that used to be described as "cheating the hangman". This hasn't, though, deterred him from launching his own novel plans for yet more draconian police powers for use against terrorism: the police are to be able to stop and question anyone about his identity, where he is going and where he has come from, even if there are no grounds for suspicion that he's up to no good. Police already have the power to "stop and search" without needing any reason to suspect them of anything, but apparently not to ask about the victim's identity or movements. The home secretary also wants to include in yet another anti-terrorism law police powers to commandeer documents for examination even if they have no obvious relevance to any offence, and to remove vehicles for examination. All this is explained in a letter to the prime minister, leaked to the Sunday Times, from Dr Reid's junior colleague, Tony McNulty, whose limpid words another Sunday Times article quotes:
Tony McNulty, the minister for counter-terrorism, outlined the plans on Reid’s behalf in a letter to the prime minister last week. “I believe that these powers will be very useful UK-wide,” he wrote. “For example, one of the public criticisms of [stop and search] has been that it is overused. Arguably one of the weaknesses of [stop and search] is that although it enables a search of an individual, it does not enable a police officer to ask that individual who they are or where they are going. Therefore a less intrusive power of stop and question that could be used by the police in the first instance would be useful. The effect of this power should therefore be to reduce the number of times stop and search is used.” [Emphasis added]
This double use of "therefore" deserves to be treasured. The idea that giving the police new indiscriminate powers on top of those which they already possess will result in their less frequent use is also a novel one. Fortunately the hostile reception that these horrendous proposals have already had at the hands of small-L liberals of all parties and the civil rights lobby suggest fairly strongly that there will not be sufficient support for them to get through parliament in the next four weeks: and that after that, Gordon Brown will have the sense and judgement to bin them.
Jackie Ashley in today's Guardian comments aptly on Blair's extraordinary complaint against not only the judges and the opposition parties, but also against society as a whole:
Careful, Tony. This is coming close to Brecht's famous quip about the East German people letting down the government, and the consequent need to dissolve the people and elect another.
And she points out, equally aptly, that —
It is a curious time to be making this sort of intervention. Changes to the law to allow the police to stop, question and demand the identity of anyone, regardless of a crime being committed or suspected, would require consultation across party lines and a proper national debate before any legislation could be framed, never mind voted on. It isn't really Blair's business any longer. He's turning from premier to heckler of his own administration. If such changes need to be made, it's surely now for Gordon Brown to talk, and decide.
This highlights the unhappy, unsatisfactory nature of the long transition.
Amen to that. How much longer to we have to listen to this stuff from, of all places, No. 10 and the Home Office? Four more long weeks, it seems.
Brian
Excellent Brian
Two legal quibbles. John Lettice is wrong to say that the control order regime was brought in because indefinite prison detention without trial was deemed to breach the European Convention on Human Rights. Only Lord Hoffman came to that conclusion; the majority accepted that derogation from the ECHR might be justified, but ruled that the Belmarsh solution was disproportionate (as well as discriminatory). And it's not quite true to say that Police already have the power to "stop and search" without needing any reason to suspect, although if you live in the London area the point is somewhat academic. Under s.44 of the 2000 Terrorism Act, the power to stop and search without reasonable suspicion can be authorised within a specified area, for a limited time – 28 days maximum. In February 2001 David Blunkett began a dishonourable tradition of designating the whole of the Metropolitan Police/City of London Police area on a rolling basis; successive Home Secretaries have followed suit.
Excellent post, anyway.
Brian writes: Many thanks, Phil, for yet another informative and helpful comment. But I'm puzzled by your remarks about the ruling of the Law Lords on the indefinite detention without trial of terrorist suspects who were foreign nationals but couldn't be deported. As I recall it, the majority did indeed hold that this provision was incompatible with the ECHR, on precisely the grounds that you describe, i.e. that it was discriminatory (because it applied only to foreign nationals, not to UK citizens) and disproportionate to the threat it purported to address. Moreover, the law lords additionally quashed the derogation order which the government had made in order to suspend the operation in Britain of the ECHR prohibition of detention without trial, although they decided not to rule on whether the government had had adequate grounds for declaring a state of emergency, the requisite first step in making a derogation order. Some of the law lords in their individual Opinions made it very clear that they were sceptical about the justification for a state of emergency, but this was in a sense irrelevant because they quashed the derogation anyway. All this places a large question mark over the (outgoing) home secretary's threat to declare another state of emergency and have another stab at some derogations from selected provisions of the ECHR. Of course they might claim to be on stronger ground now that the disputed regime of control orders is no longer discriminatory: it applies to Britons as well as to foreigners! But the object of a fresh derogation would presumably be to allow them to reintroduce full-scale house arrest without trial for suspects, almost equating to detention: and it's hard to see why that would be held by our courts, or by the European Court of Human Rights, to be proportionate now when it wasn't in December 2004.
Paras. 95 to 97 of Lord Hoffman's Opinion here are relevant, resonant, and splendid. It's no wonder that Mr Blair has singled part of it out for special opprobrium.
It's perhaps worth quoting the actual words of the law lords' decisions from the final paragraph of Lord Bingham's Opinion, endorsed by the majority of the other law lords:
Brian
Thanks for quoting Blair's article; it meant I actually read his appalling doublethink rather than just skipping to the comments to see him roundly condemned.
Yesterday I asked a policeman at Victoria station what he thought of it all. Even though I asked him 'as one subject to another' he declined to comment. Not that I'm a royalist, I was being cheeky. Why does Blair refer to British 'nationals' rather than citizens? I've heard some of his best friends are black.
I haven't put the Cava on ice for 27 June though. I'll believe it when it happens. When I see Cherie dragged screaming from Number 10, her claws dragging the imperial velvet curtains over the doormat as her other hand stuffs cutlery in her pocket.
Brian writes: lol! It's a lovely image, but perhaps just a tiny bit hard on Cherie?
Brian – I think we're both right. Derogation from some (not all) articles of the ECHR is permitted under article 15, but only in conditions of national emergency and only to the extent that is required by the exigencies of the situation. The British government derogated from article 5 (the habeas corpus article, broadly speaking), but not from article 14 (non-discrimination); the Law Lords essentially found that the derogation from one article of the ECHR was itself in violation of another article. They also held that the derogation violated the proportionality criterion of article 15. But the majority opinion reserved judgment on whether the current situation amounted to a national emergency such as to make derogation appropriate. This is why the Prevention of Terrorism Act 2005 – which brought in control orders – provides for both 'derogating' and 'non-derogating' control orders, although to date the government's never gone so far as to authorise the latter (and several of the former have been struck down as disproportionate).
PS: To clarify: my problem with John Lettice’s formulation is that it seems to imply that the Law Lords had struck down the derogation from ECHR article 5 as such. In fact, the majority expressed no opposition to derogation from article 5, in principle; hence the PTA 2005, which empowers the government to formulate derogating control orders (subject to court approval).
Brian writes: Phil, renewed thanks. I agree that we don't really disagree, except perhaps semantically. I am putting my response in a new separate comment, qv.
Phil, thanks once again. But the fact is that the law lords did quash the derogation. Their reasons for doing so varied slightly, but the majority — all but one? — agreed that it must be quashed, principally because they thought it was not "strictly required by the exigences of the situation", as you say (or imply). I agree that they decided not to rule on the justification for the state of emergency (one of them said he doubted whether the situation qualified under the ECtHR definitions but that he was prepared to give the government the benefit of the doubt), but I suspect that had they been required to decide that point, the majority would have gone against the government. Wishful thinking, probably.
As you say, the Prevention of Terrorism Act 2005 envisages the possibility of a further derogation, distinguishing between two different kinds of control orders: those imposing restrictions amounting to house arrest, which it accepts would require a fresh derogation, and those imposing lesser restrictions which it asserts would not. None of the first kind has been attempted, partly I think because the parliamentary approval which would have been required for it might well not be forthcoming, and partly for fear that a new derogation would suffer the same fate as the first at the hands of the courts. If they had tried to derogate again, I suppose the government would have responded to the inevitable legal challenge by saying that (unlike the old provision for imprisonment without trial) the control orders were not discriminatory, since they apply to Brits as well as to danged furriners; and that this time they were proportionate to the threat, partly because of the London bombings and other new evidence of a frightful, unprecedented, unimaginable threat from Islamic extremists, and partly because house arrest is (arguably) less extreme than being banged up in Belmarsh. I'm not entirely sure whether the appalling "Dr" Reid is now threatening a derogation to allow house arrest under control orders, or a derogation to allow full imprisonment without trial once again, Belmarsh II: I suspect the latter, since both he and Blair have both been whingeing loudly about how unsatisfactory control orders are. I just hope we shall never know, and that once he's safely in No. 10 by right of office rather than as a sort of licensed squatter, Gordon Brown will quietly drop the whole ghastly misconceived thing.