Since the General Election in May, when the Liberal Democrats formed an unlikely alliance with the Tories, cracks in the coalition have been kept to a minimum, although this, hopefully, is about to change.
The battleground is not, sadly, the all-out and ill-conceived assault on the poor unleashed in George Osborne’s smug and cruel comprehensive spending review, but civil liberties, and specifically the control orders that formed such a key part of the Labour government’s paranoid and draconian counter-terrorism legislation.
Introduced in March 2005 after the Law Lords ruled that the government’s previous response to the perceived terrorist threat from a handful of foreign nationals — imprisoning them without charge or trial in Belmarsh for three years — was illegal, control orders are a form of house arrest, in which foreign nationals — and, increasingly, British nationals — are severely deprived of their liberty, on the basis of secret evidence and without being charged or tried.
Typically, they involve forced relocation within the UK (often to almost uninhabitable flats in areas where racism is prevalent), punitive curfews, the vetting of all visitors, a ban on the use of computers and mobile phones, tagging, the obligation to check in regularly (at all times of the day and night) with the security firms monitoring the tags, and random raids by Home Office personnel. For those with families, their wives and children suffer; those who live alone are often horrendously isolated.
Although the coalition government hit some easy civil liberties targets in its early days — scrapping the crippled ID card project, for example — control orders (which were savaged by the Law Lords in June 2009) always looked to be a potential battleground, as I explained in an article just after the election, “98 MPs Who Supported Human Rights While Countering Terrorism.” In that article, I noted that, on March 1 this year, when the House of Commons voted on whether or not to renew control orders, as they have done every year since 2005, almost every Lib Dem MP — including Nick Clegg, Vince Cable, Chris Huhne and Danny Alexander — voted against the renewal of the legislation, whereas just one Tory — the maverick David Davis — joined them.
Moreover, as Andrew Rawnsley explained at the weekend in the Observer:
Nick Clegg condemned the “control order regime” in these terms: “It removes the pressure to charge and prosecute the criminals whom we all want to see apprehended. It diverts energy and attention away from other important innovations that we should be examining to strengthen our criminal justice system, and it infringes the most fundamental principles of due process and human rights.” The Liberal Democrat manifesto pledged to abolish control orders on the grounds that: “The best way to combat terrorism is to prosecute terrorists, not give away hard-won British freedoms.”
If this did not augur well for the outcome of a post-election review of the Labour government’s counter-terrorism legislation, this was confirmed on Saturday, in an official response from the Liberal Democrats to a letter from Jonathan Evans, the head of MI5, to David Cameron, in which Evans claimed that he “could not guarantee the safety of the public if the control order regime was scrapped.” Evans and Charles Farr, the head of the Office of Security and Counter-terrorism in the Home Office, have also told ministers they regard “keeping control orders and a 28-day period of pre-charge detention for terror suspects as ‘red lines’ in the review.”
In the Liberal Democrats’ letter to the Prime Minister, Tom Brake MP, the co-chair of the Lib Dem home affairs parliamentary party committee, backed up by Baroness Sally Hamwee, and Lord Martin Thomas, representing Lib Dem peers, stated, “We have been delighted by the coalition government’s commitment to reclaiming our civil liberties. You will appreciate of course that the continuance of control orders is quite inconsistent with the thrust of those assurances. In principle, as we argued many times during the administration of the last government, control orders should be scrapped.”
They added that, “even if a marginal security advantage is gained from their use, it would be wholly negated by their adverse impact on Muslims both as individuals and as a community,” and also argued that “an alternative package of measures including the withdrawal of travel rights, more surveillance, unannounced home visits, and the use of intercept evidence to enable more prosecutions to go ahead would be more effective and have less impact on civil liberties.”
On the proposed 14-day limit on pre-charge detention, favoured by home secretary Theresa May, there is more consensus amongst ministers, although the Liberal Democrat letter took exception to another idea floated as part of the review, telling David Cameron that it “would not be acceptable” for “a back door attempt to retain control orders” to be implemented “by introducing bail conditions with similar restrictions for periods beyond the new limit of 14 days.” The letter’s signatories stated, “We believe a maximum of 14 days pre-charge detention gives wholly adequate time to bring charges, even in the most complicated cases of multiple attack. We will regretfully advise opposition to the introduction of draconian bail conditions, which would seek to impose restrictions equivalent to control orders as they currently exist.”
The problem for the government, as the Guardian explained on Saturday, is that Theresa May is “thought to have recently reluctantly swung behind the retention of control orders as a necessary evil, despite repeated interventions by Nick Clegg,” provoking the possibility of a high-profile split in the coalition, prompted in particular by disagreements between Jonathan Evans and Ken Macdonald, the former director of public prosecutions, and now a Liberal Democrat peer, who was appointed by the government to lead its counter-terrorism review.
Unlike Evans, Macdonald was “a particularly potent critic of control orders and 28-day detention without charge, and as a result, when it was suggested two weeks ago that the review he headed, which was undertaken by the Office of Security and Counter-terrorism, was “expected to tell ministers that control orders … should remain, but the time police can hold suspects without charge should be cut to 14 days from 28,” he apparently wrote to the home secretary, “warning that he would publicly denounce any decision to retain control orders” when the review is finally published. A source told the Guardian, “Ken will go ballistic if the government decides to keep control orders.”
Such is the tension within the government that, according to Andrew Rawnsley, when Theresa May “went to Number 10 a fortnight ago for a difficult meeting with David Cameron and Nick Clegg [and] revealed that they had hit this impasse, both men were horrified.” and David Cameron told the meeting, “We are heading for a fucking car crash.”
Whether this is true or not may depend largely on Cameron himself. According to Rawnsley’s analysis, May, “an inexperienced home secretary,” has been “easily captured by securicrats who are always reluctant to give up powers once they have them,” and Cameron therefore needs to find the strength to rebut both May and Jonathan Evans, paying attention to a comment made by a “senior figure with a ringside seat,” who told Rawnsley, “This is what they always do. When Jonathan Evans eyeballs the prime minister and says, ‘I can’t guarantee that the public will be safe from terrorism if you don’t give me this,’ it is hard for the prime minister to stand up to that.”
A further need for decisive action on Cameron’s part was identified when Theresa May attempted to publicly rebuke Macdonald, telling Andrew Marr on his BBC show on Sunday, “Lord Macdonald is doing a specific job, which is looking at the review which is taking place. He is ensuring that the process of that review is a proper one because the review itself is an internal review, so I thought it appropriate that someone externally should look at it and say they have looked at the right questions and talked to the right people. That is the job Lord Macdonald is doing — but ultimately, the decision on what is in place in terms of our counter-terrorism legislation is a decision for government.”
For Nick Clegg, giving up on his promise to scrap control orders would be a disaster, and for once he needs to stand his ground and detach himself from Cameron, if the PM looks set to waver. After all, support for his position comes not only from Ken Macdonald, but also from his own party and from several prominent Tory MPs.
The energy secretary, Chris Huhne, countered Theresa May’s caution on the BBC’s Politics Show, when he stated unambiguously, “We voted against control orders repeatedly, and I think that all of us in government frankly want to preserve the rule of law. It’s an absolute key part of out tradition. Let us see what happens in terms of the review — but I very firmly believe that the values we have in this country of a fair trial … you should know what you’re accused of, you shouldn’t be locked up or put under house arrest. It is not the sort of thing that we have traditionally done in this country, and I want to get to a situation where we do not have to do that.”
Huhne added that, if the authorities wanted to “deal with” terrorists, they should prosecute them. “I want to see people who are suspected of terrorism brought to justice properly, through the courts, in the same way we have traditionally done in this country for any other offence,” he said.
Other critics include the attorney general Dominic Grieve, who has described control orders as “a departure from our established principles [which] threaten our liberties greatly,” security minister Pauline Neville-Jones, a former chairwoman of the Joint Intelligence Committee, who told the Lords that the Tories would take office “with the aim, if we possibly can, of eliminating the control order regime,” and the justice secretary, Kenneth Clarke, who, as Andrew Rawnsley explained, “hasn’t budged in his opposition. Mr. Clarke has been round the Whitehall block several times in his long career. He has been home secretary. He is not intimidated by the heavy breathing of the head of MI5. He understands that politicians should be attentive to the advice of the security services, but not slaves to them.”
There is also David Davis, who waged a one-man war against the Labour government’s complicity in the torture of terror suspects abroad. Davis told the Daily Mail on Monday that David Cameron was facing “a ‘major scale’ rebellion” on control orders, with at least 25 Tory MPs prepared to vote against the government. Asked if keeping control orders would be a “classic mistake,” Davis stated, “I will oppose it. I think it’s wrong. Full stop.” He added, “You’ve probably got 25 Lib Dem MPs who would find trouble voting for this. I suspect as many Tory MPs as well, maybe more. Certainly many more who are worried about it.”
If David Cameron remains concerned about Jonathan Evans’ whispering in his ear, he should listen closely to Andrew Rawnsley:
The head of MI5 does a vital and difficult job. He knows a lot more than most of us about the nature of the terror threat. But that shouldn’t make him the supreme arbiter of the balance between protection and civil liberties. Nor is he an infallible authority on the appropriate policy response to terrorism. Mr Evans’s predecessor at MI5, Eliza Manningham-Buller, took the opposite view: she was deeply sceptical about control orders and downright hostile to extended detention without charge.
In addition, as the Guardian explained in an editorial on Monday:
This does not need to be a confrontation. As the Tories so forcefully argued in 2005, refusing to compromise on national security and keeping control orders are not two sides of the same coin. Control orders were brought in to contain individuals who could not be prosecuted for lack of admissible evidence. Since then, prosecution has become simpler and the number of terror offences has been increased. One more change is needed, one familiar in every other democracy and opposed here only through outdated cold-war-era fears: making intercept evidence admissible.
That last point is crucial, and anyone wishing to know more would be well advised to read the detailed June 2009 report by JUSTICE, an all-party pressure group seeking reform of Britain’s antiquated approach to accepting the use of intercept evidence (PDF). With the careful and appropriate use of intercept evidence (accepted in most other countries that claim to be civilized), trials could take place, and a fundamental respect for the law could be reintroduced.
To do so, however, would involve the acceptance, by both the security services and ministers, that they can no longer use secrecy — and the use of secret evidence — to hide not their operating methods and the identities of their operatives (which can, and would be protected), but their mistakes, incompetence and unacceptable scaremongering.
Note: As the Guardian also explained, “The OSCT has drawn up six papers covering control orders, pre-charge detention, deportation of terror suspects to countries where ‘no torture, no ill-treatment’ assurances have been given, local authority surveillance powers, stop and search powers and photography in public places.” In addition, “Further details of a separate part of the counter-terrorism review, covering the future of the Prevent programme to tackle radicalisation in Britain, are expected to be published this week.”