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Control Orders - PM must keep terror review on the road

Control Orders - PM must keep terror review on the road, says human rights group
MI5 must be told to take a step back

David Cameron is reported as saying that the Government's review of counter-terrorism powers is "heading for a f*****g car crash." Human rights group Scotland Against Criminalising Communities (SACC) says the Prime Minister must keep the review on the road. SACC prediicts a very messy crash if MI5 is allowed to seize the wheel. SACC says that control orders give a dangerous amount of power to MI5 and are likely to encourage terrorism.

MI5 wants to keep control orders. So do right-wing media commentators. They want to use the air-freight bomb plot to stampede the Government into "tough on terror" posturing. But the plot doesn't change the facts of the matter. Control orders are dead in the water, blasted by an unanswerable - and entirely justified - ruling by the Law Lords in June 2009. No one has been able to propose a way of adapting the control order regime so that it might stand a chance of complying with the ruling without also stripping the regime of most of its power. Control orders are oppressive, ineffective and likely to stimulate terrorism. They cannot responsibly be retained.

The Law Lords ruling means that, if control orders are retained, each control order will have to be crafted to fly under the radar of the Supreme Court (previously the Law Lords). There is no guarantee that this will be successful. The Government, like the previous one, will find itself behaving like a group of gangsters, perpetually ducking and dodging to stay one step ahead of the law.

Former shadow home secretary David Davis predicts that Tory as well as Lib Dem MPs would rebel against any attempt to hold on to control orders. Some Labour backbenchers opposed control orders even when Labour was in power. SACC hopes that Labour will whole-heartedly oppose control orders now that New Labour is officially dead. That could spell defeat for the Government. The control order legislation has to be renewed by parliament every year. It will fall due for renewal at the beginning of March.

Control orders can place a variety of restrictions on the "controlee", ranging from restrictions on travel and communications to house arrest. The Government can impose a control order on anyone it suspects of "terrorism-related activity", even if it doesn't suspect them of any crime. Legal oversight of the Government's initial decision is almost non-existent. If the "controlee" appeals against the order, the Government can present its evidence to the High Court in secret, withholding it from the "controlee" and their lawyer of choice.

Control orders are fiendishly effective at tormenting more or less law-abiding people. But if a control order - even one of the "tough" ones in force before the 2009 Law Lords ruling - were ever to be used to try to restrain a real terrorist, it would be as much use as a pair of chocolate handcuffs. People under control orders have been able to abscond with apparent ease.

Supporters of control orders now say that the orders could be used to stop British-based propagandists for terror from influencing a hypothetical future Anwar al-Awlaki, the alleged spiritual leader of the Yemeni terrorists said to be behind the air-freight bombs. They suggest that someone like al-Awlaki might come in all innocence to live and study in Britain and then head overseas primed to mutate later into a hardcore terrorist leader. Whether or not control orders could prevent such a thing, their manifest injustice will certainly be more effective than any propagandist at driving Muslims to terrorism.

Control orders give MI5 the power, mediated by the Home Secretary, to impose punishments on anyone living in Britain, without recourse to criminal law. Presumably that's why MI5 is so attached to them.

The debate over control orders has become a naked power struggle between MI5 and the legal system. If the Government intends to govern, there is only one way that struggle can end. MI5 must be told to take a step back.

If the Home Office won't stand up to MI5 in conducting its review of counter-terrorism powers, it's hardly likely that the Home Secretary will in future be able to provide a check on MI5 powers when the spooks ask her to slap a control order on someone. That should frighten us all.

Control orders, as originally legislated, have been dismantled by a series of Law Lords rulings over the years. They have reached the end of the line. Any Government, whatever its political complexion, would have to lay them to rest. SACC has opposed control orders ever since the legislation was drafted in 2005. We have submitted our views to the current review of counter-terrorism powers. Now we are asking the Prime Minister to stand up to MI5, take the wheel and keep the review on the road.

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Notes for Editors

  1. See SACC's submission to the Government's review of counter-terrorism powers . The submission makes recommendations on each of the powers being considered by the review. SACC's recommendations on control orders are:
    • Control orders should be abolished; the Prevention of Terrorism Act 2005 should be repealed.
    • Alternative measures are neither necessary nor desirable, except in relation to individuals reasonably suspected of posing a direct physical threat to the public.
    • Where individuals are reasonably suspected of posing a direct physical threat to the public but cannot be charged with a criminal offence, the danger they pose should be managed by precautionary policing and intelligence work under existing powers.
    • In view of the extremely broad terms of the Prevention of Terrorism Act 2005, and of the circumstances surrounding a number of control order cases, it should not be assumed that people currently under control orders can reasonably be suspected of posing a direct physical threat to the public.
    • In view of the issues discussed in part 3.4 of SACC's submission, and of the circumstances surrounding a number of control order cases (including allegations that attempts have been made to use control orders to coerce people into working for MI5), no confidence can be placed in the capacity of the security and intelligence services to make a meaningful and fair assessment of the risk posed by individuals under circumstances of the sort covered by control orders.
    • Reparations should be made to people whose human rights were violated by control orders.
  2. In June 2009 the Law Lords ruled that people under control orders have a right to be given enough information about the allegations against them for them to be able to mount an effective challenge. The Home Office has dropped some control orders rather than provide this disclosure. In other cases, the Government has applied "light-touch" control orders in the hope that these would not be sufficiently punitive to trigger the right to a fair trial.

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