Control Orders abolition is timely boost for Nick Clegg

After the kerfuffle - or in the Prime Minister's more colourful lexicon, the impending "f**king car crash" - a couple of months ago concerning control orders, it appears that they are going to be abolished after all.

I did not buy the Sunday Times today, chiefly because I overslept as a result of Apple's iPhone glitch, nor do I subscribe to the online version (though watch this space).  So this news comes to me courtesy of David Blackburn at the Spectator's Coffee House blog.  Astride an earnest photograph of the Liberal leader, Nick Clegg, is the headline: 'A pyrrhic victory for the Lib Dems?'

In November 2010, here and here, I made the case for abolishing control orders.  In spite of the sincere wishes of the security services, they are an infringement of our fundamental civil liberties and an affront to the ancient British constitution.

There is a strong argument for their retention and one that I acknowledge wholly.  One Conservative backbencher put it to me in no uncertain terms, that your everyday British citizen in the provinces could not spare a thought for elite metropolitan musings about habeas corpus and "ancient liberties".  People want to know that they are safe and if the security services tell us that control orders make this country safer - especially at a time when the Prime Minister informs that "the terrorist threat is as serious as it has ever been" - then these instruments are a price worth paying.  Tell them that they only affect nine people and the case will be, for most people, closed.

Nonetheless, I maintain my belief that an excessive erosion of our civil liberties is not the correct antidote to fighting terrorism.  It is, as I wrote in November, a 'head versus heart' sort of call.  My heart certainly desires the ending of control orders and on balance, my head does too.

Yet the most immediate point is that this is a timely boost for Nick Clegg, who ended 2010 at rock bottom personally and his party sinking ever lower, following the fallout over tuition fees and the disreputable sting of coalition ministers by Daily Telegraph journalists.  Whilst control orders are also opposed by a number of senior Tories, they would probably have been retained by a majority Conservative Government.  A rearguard attack from the likes of David Davis would have caused no damage to the Government in that scenario.  He might perceive himself as a standard bearer for popular Tory disaffection but this is a policy on which he might find little favour in his party.

As voters go to the polls in the Oldham East & Saddleworth by-election, the scrapping of control orders is a valuable feather in the cap of the Deputy Prime Minister and further evidence that his Liberals are making a significant impact in Government.  Prior to learning about the control orders situation, I made the prediction that the Liberals would gain the seat that they came within one hundred votes of winning in May.  This latest policy victory only strengthens that prediction.

Back over at Coffee House, the caveat is inserted that this a 'pyrrhic victory' for Nick Clegg, as it contrasts painfully with the perceived 'loss' over tuition fees for full-time undergraduate UK students (to provide the full terminology).

I'm not so sure.  The article rightly remarks that this "popular perception" of the HE issue is "erroneous".  Nonetheless, to juxtapose it with control orders suggests that they are connected - for it to be 'Pyrrhic', after all, they would have to be, and the 'loss' of tuition fees would have to have been the cost of the 'win' of control orders.

Yet that is a semantically driven chicken-and-egg quibble, which I shan't dwell on.  The main point is that voters are not going to put two-and-two together unless  journalists wishing to construct a political narrative do it for them on a persistent basis.

The damage has been done on tuition fees and the upcoming White Paper is not going to make matters any better or worse.  The Liberal contribution to more general HE reforms is significant - a majority Conservative Government would have, for instance, accepted Lord Browne's recommendation to remove the fee cap entirely.  Regrettably, salient points such as that no longer have any chance of piercing the violent fog of student contention.

On control orders, however, Nick Clegg can point to a genuine victory and one that is very straightforward to communicate.  A Conservative Government equals the retention of control orders.  A Coalition Government equals the removal of control orders.

The Government's ability to sell its message has been pretty hit and miss since its formation last summer.  Nevertheless, this is no hard sell.

As long as the media is willing to buy it, that is.


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UPDATE: Michael White has posted this article too, which takes the same line as David Blackburn at the Speccie, i.e. that Clegg should not be claiming this as too much of a 'victory'.


His verdict is somewhat different, however, in that Clegg's reticence should stem from the horrible possibility that this all turns out badly in the form of another homegrown terrorist atrocity that could have been prevented by a control order.


I sympathise with all of that, as I write above, yet still agree with Shami Chakrabati's statement: "punishment without charge or trial is the hallmark of despots".  And Michael White concedes, "it's hard to disagree with her."

Torn between head and heart on Control Orders?



Am I torn between head and heart? On one level, I don't think the general public gives two monkies if some shifty characters are put under near-perpetual house arrest (what is it, 40 over 5 years?) as long as the numbers are small and it strengthens our national security. If the head of MI5 says we need them, most people will say 'that's good enough for me' and move on to something that actually affects their day-to-day lives.

Yet that's the utilitarian view, and I don't believe that in this instance Bentham's principle of utility trumps the British principle of liberty and, particularly, habeas corpus. It is the legal foundation on which our constitution is built and is what set us apart from darker, more authoritarian Europe for centuries. Fine, the history of its implementation has not always been perfect, but it has been there as the starting point for liberty in this country.

So we have legal and ethical philosophy, history and tradition, pitted against cold utilitarianism and the harsh realities of governing compared to the bright idealism of opposition.

But hoestly, why wouldn't a security chief ask for more powers? Of course he would. Why wouldn't this make us safer? Of course it might, and probably does.

But that does not make it right. We are in this fight with radical, oppressive terrorist dogma in order to protect these hard-won and fiercely defended liberties. Should we really abandon them now? I do not believe, as some say, that abolition would be a sign of weakness in the eyes of terrorists. Instead, it is a sign of strength, it is a sign that we are unbowed, it is a sign that the way we live our lives, in freedom and toleration, shall not be compromised.

So no, I am not torn between head and heart. Both desire repeal of control orders. I can understand the rationale for their retention, but that rationale is not as strong as that for repeal.

Moreover, the Conservative Party and the Liberal Democrats have opposed control orders from their inception. The glue that binds the two parties together is civil liberties.

To turn their backs on that now would be to turn their backs on the philosophical basis on which this Coalition is built.

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.