Monday, 1 November 2010

Control orders: the dilemma they didn't see coming?

St Julian of Norwich was one of England's most celebrated mystics, exalted for her perspicacious revelations of Jesus Christ, and religious teachings thereof.

Were St Julian to work her clairvoyancy on her feast day of 8th May 2010, as the Conservative-Liberal Democrat coalition coalesced in the wake of the inconclusive general election, she would have been likely to foresee three big banana peels: Europe, Trident and electoral reform.

Withal, one didn't have to be a saintly seer to pick out those three policy areas as obstacles to any deal between the parties, and I did exactly that on 8th May (soon after, I added tuition fees to that list).

Yet with remarkable ease have each of these policy land mines been adroitly averted.

The Government has talked tough on Europe but in practice has plotted a calmly conciliatory course.  Prime Minister and Foreign Secretary do not see this as a time to pick any fights over Europe.  Cameron unabashedly took some flak from the eurosceptic right last week about the EU budget.  That he has emerged essentially unscathed shows just how unimportant an issue Europe is right now.

Trident renewal seemed placed like a ticking time bomb within the Strategic Defence and Security Review but ended up a dud.  The expected fireworks did not materialise as the decision was deferred till a date beyond the coalition's allotted expiration.  Again, rightist elements repined briefly but fizzled out without a trace.

On electoral reform, the Liberal Democrats have been conceded a referendum on the Alternative Vote next May.  Conservative MPs cavilled at length about the the date of the vote and accompanying constituency changes but the Government has managed to get things through, not least because the No2AV campaign is confident of victory, constituency equalisation should favour the Conservatives, and a reduction in the number of MPs was a Conservative election pledge.

Even higher education funding, so important to the Liberal Democrats, has been managed without too damaging a fuss.  There will be significant concessions to coalition's junior partners as Lord Browne's more unpalatable recommendations are trimmed back, but it appears that the broader thrust of the proposals will be adopted - something that I thought unlikely only a few weeks ago.

So full marks to the coalition leadership for piloting their parliamentary parties through perilous terrains?

On the surface, yes.  However, in glibly thwarting those dangers, so consuming much energy and political capital, one can't help but feel that the Government has allowed one very serious issue to catch it cold: control orders.

Control orders were introduced in the UK by the Prevention of Terrorism Act 2005, and are a way of providing for a graduated scale of technological "prisons without bars" complicit with the European Convention on Human Rights.  They have been a focused target of civil liberty campaigners, legal challenges and parliamentary criticism.  Their passing was bloody and draining, with peers sitting for thirty hours straight attempting to amend the bill within which they were manifest.  The coalition Government commissioned a review of control orders under Lib-Dem peer Lord Macdonald, a former director a public prosecutions.  The review is due to report shortly.

Andrew Rawnsley, in this weekend's Observer, described "a commitment to liberty [as] the essential glue that binds the Tories and the Lib Dems."  Serendipitously, that is the same description - almost to the word - given to the Tory Reform Group conference on Saturday by Shami Chakribarti, director of Liberty.  They are both correct.  If anything united the two parties in their opposition to the last Labour administration - the most authoritarian in living memory - it was civil liberties.

Fast forward to the present and prominent Conservative ministers, including Grieve (Attorney-General), Ken Clarke (Justice Secretary), Pauline Neville-Jones (security minister) continue to make their opposition to control orders clear.  Dominic Raab MP has written that "sacrificing our liberties won't win the war against terror."  They are joined by Liberal Democrat colleagues such as Chris Huhne (Energy & Climate Change Secretary), who has condemned the policy as "Kafkaesque".  The Liberal Democrat manifesto said: "We believe that the best way to combat terrorism is to prosecute terrorists, not give away hard-won British freedoms."  The Coalition Agreement pledged to "reverse the substantial erosion of civil liberties under the Labour Government", including the "protection of historic freedoms through the defence of trial by jury" and "safeguards against the misuse of anti-terrorism legislation."

So, if the coalition partners broadly agree that control orders - a judicial instrument that subverts the centuries old edict of habeas corpus - are incompatible with the British values of liberty and right to a fair trial, why is there a crisis brewing?

In September, the head of MI5, Jonathan Evans, gave a speech in which he called for the retention of control orders, saying: "Terrorist threats can still exist which the criminal justice system cannot reach.  The government cannot absolve itself of the responsibility to protect its citizens just because the criminal law cannot, in the particular circumstances, serve the purpose."

This puts the Government in a terrible bind.  Ministers have set great stall on the importance of taking the advice of expert professionals, whether in the armed forces, the NHS, schools or the security services, and not dictating from Westminster and Whitehall.  Now the country's most senior internal security official insists that the "government cannot absolve itself of the responsibility to protect its citizens".

Does the Government, as this Telegraph leader implores, take Jonathan Evans' advice, for the sake of our national security?  After all, this dispute is being played out very publicly with the backdrop of explosive material being posted into the country on courier aircraft.

Or, does the Government honour the pledges made by both parties since 2005 to oppose, and then repeal, control orders?

In a word, yes.  I.D. cards have already been revoked and the detention of children at Yarl's Wood is being stopped.  Control orders have to be next in line.  This goes to the very core of why the Conservatives and the Liberal Democrats are working together.  The official raison d'etre to this coalition, governing "in the national interest", is to reduce the deficit and restore the UK economy on to a sound footing.  This is the harsh, but necessary, intellectual rationale for the coming together of the two parties in a strong and stable government.  It is the head of the coalition.

But if the economy is driven by the coalition's head, then civil liberties are the beating of the coalition's heart.  On no other significant issue have Conservatives and Liberal Democrats been so consistently united.  The Government mustn't, shouldn't, cannot flinch now.

I do not doubt that there is some truth in what security chiefs are saying.  The eradication of control orders would remove a potentially useful protective and pre-emptive capability.  However, that does not make retaining them the right thing to do.  The battle that we are waging is one of liberty and toleration versus suppression and intolerance.  Control orders are designed - in good faith - to assist in winning this battle.  However, they are a deeply illiberal way of doing so.

Dominic Grieve, when he was still the Conservatives' Shadow Attorney-General, said in the House of Commons on 10th March 2005:
"Government Members yesterday suggested that the need for security was so great that any infringement of liberty might be tolerated.  We disagree profoundly with the Government on that point."
It is to be hoped that this coalition Government, which has professed to restore the essential liberties curtailed by the last Government, does not have to face a similar charge.

The indecisiveness apparent in the government machinery is regrettable and it smacks of a woeful lack of preparation.  Yet this can all be averted by making the right decision.  Ministers talk a lot about having to take very difficult decisions in the national interest.  This one is relatively straightforward.

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