Control orders remain in all but name as Lib Dems renege on manifesto pledges
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On 26 January, the Home Office published its long-awaited review of counter terrorism and security powers:
The review's findings and recommendations can be found here.

The Home Secretary, Theresa May, told Parliament that control orders would be "repealed" and replaced by Terrorism Prevention and Investigation Measures (TPIMs). [1] They will be introduced by legislation put before Parliament "in the coming weeks." In the meantime, control orders have been renewed until December 2011. The key features of TPIMs are:

* They can be imposed if the Home Secretary "has reasonable grounds to believe that the individual is or has been involved in terrorism-related activity." This is a higher threshold than the current test for control orders of "reasonable suspicion."

* Prior permission must be sought from the High Court before a TPIM can be imposed, except in urgent cases. Once introduced, the High Court will then conduct a mandatory review of every TPIM with the power to quash or revoke the measure.

* A TPIM can be issued for a maximum period of two years and will only be renewed "if there is new evidence that they have re-engaged in terrorism-related activities."

* Current 16 hour curfews will be replaced by shorter "overnight residence requirement" - typically lasting between eight and 10 hours - that will be enforced by electronic tagging. The government has said that TPIMs will be more flexible and better accommodate suspects' work requirements.

* TPIMs will permit greater freedom of communication and association than control orders. Suspects will be granted limited use of the internet so long as they disclose all of their passwords.

* Exclusion from specific locations and the prevention of overseas travel will be "tightly defined." Relocation orders, which forced control orders recipients to leave the community in which they live, will be scrapped.

* Breach of the conditions, without reasonable excuse, will be a criminal offence punishable by up to five years imprisonment (the same as control orders).

* The government will have the power to introduce additional restrictive measures on suspects under "exception circumstances." This would include "curfews and further restrictions on communications, association and movement."

* Unlike control orders, the system of TPIMs will not need to be reviewed every year.

Nick Clegg told BBC News:

It has changed in fundamental design. Firstly they cannot be kept in place, these measures, permanently, they are time limited. Secondly they are subject to complete oversight by a judge. Thirdly, house arrests, either by very, very draconian curfews or by simply relocating people to other parts of the country, go.

[Individuals] 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 that they weren't under the old system, whilst at all times ensuring that, of course, they can also not do anything that could do harm to the British people ...

I think people in the party will be very supportive of this package...We have always said in opposition that we need to rebalance this very important relationship between liberty and security, that is what we've done we have to show the British people we'll keep them safe. [2]

In reality the new system is little more than a watered-down version of control orders - critics have been quick to label it "control orders lite". Further, the Lib Dem 2010 general election manifesto did far more than call for a rebalancing of the relationship "between liberty and security." It pledged specifically to:

Scrap control orders, which can use secret evidence to place people under house arrest.

And to:

Make it easier to prosecute and convict terrorists by allowing intercept evidence in court and by making greater use of postcharge questioning. [3]

Neither of these commitments has been enacted. Control orders have been abolished in name alone: amended, not replaced. Crucially, TPIMs will retain its predecessor's most objectionable characteristic of operating outside the criminal justice system and bypassing judicial process. Under the new system individuals will continue to be punished without charge or trial on the basis of secret evidence heard in closed courts that they are not permitted to hear or contest. TPIMs will restrict suspects' civil liberties less severely than control orders currently do, but the new system will continue to undermine the presumption of innocence and remains an inadequate substitute to a fair trial.

This wholly undemocratic process stems from the fact that Britain is the only country in the common law world to ban the use of intercept evidence in court, making it incredibly difficult to prosecute individuals suspected of terrorism offences. May told Parliament that she intends to publish a written statement regarding the steps that are being taken towards allowing the use of intercept evidence in court. However, in the past the UK's security services have been intransigent in their belief that the practice would pose an unacceptable risk to national security by revealing important operational practices. Given the level of deference May has been accused of showing the security services over control orders and the difficulty previous governments have had in amending the practice, there is little cause for optimism. [4] Indeed, though May claims that the government is intent on finding a way to prosecute terrorism suspects, the fact that TPIMs will not need to be reviewed each year - as control orders were - indicates that these powers are no longer seen as exceptional, but are here to stay.

For more on control orders see: Statewatch analysis on the coalition government's commitment to civil liberties. Original report (June 2010, pdf) and Six month update (January 2011, pdf)

Coverage of control orders:

- Liberty press release
- Justice press release
- Big Brother Watch analysis

Footnotes

[1] http://www.homeoffice.gov.uk/publications/parliamentary-business/oral-statements/ct-review/
[2] http://www.guardian.co.uk/politics/2011/jan/26/politics-blog-pmqs-live
[3] http://www.libdems.org.uk/our_manifesto.aspx
[4] http://www.guardian.co.uk/commentisfree/2010/oct/31/andrew-rawnsley-coalition-terrorism-laws; http://news.bbc.co.uk/1/hi/uk/8405109.stm


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