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The government's long-awaited 'Review of Counter-Terrorism and Security Powers' has been published - but those hoping for radical change to the control order regime will be disappointed. Key aspects of the controversial system of detaining suspected terrorists without full trial are to be retained, as the system is effectively rebranded under a new name, and watered down.
The Review was commissioned by the coalition government in July 2010 with a view to rolling back some of the stringent anti-terrorist laws introduced over the past decade in reaction to unfolding terrorist events post-9/11. Ministers were concerned that the balance between freedom and security had swung too far away from individual liberty, without justification.
But against the backdrop of the ongoing heightened terrorist threat, they have found it difficult to make radical change. Instead, Parliament will be asked to agree measures which to a large extent chip away at current laws and practices, weakening them but not in many cases getting rid of them.
Control orders are to be replaced with 'Terrorism Prevention Investigation Measures' (TPIMs) - new powers which appear very similar to the old regime. They will be issued only with the authority of the Home Secretary and with regular reviews by a senior judge - just as control orders are. And although curfews of up to sixteen hours will no longer be permitted, suspects will still face being restricted to a specific location for up to ten hours. They may be still be tagged, put under surveillance, banned from travelling or visiting specific UK locations, or meeting other suspects.
There will be some concessions, making it easier for suspects to lead a more normal life. Some will be allowed to work, and suspects may be allowed to use computers and mobile phones, although only on the condition that they supply numbers and passwords to the authorities.
The latter changes do mark a move towards greater liberty - but ministers have not relinquished the right to return to a tougher regime in future. They plan to publish (although not introduce unless required) new legislation allowing for stringent curfews and restrictions on communications, association and movement similar to those currently seen under control order.
But detaining terrorist suspects in any form without trial will never be satisfactory in a democracy. The new measures are a far cry from the system introduced in the aftermath of 9/11, when detainees were locked in high-security jails. Successive court challenges have forced the authorities to find other ways of holding suspects, each time weakening the detention rules and culminating in control orders, which were effectively a form of house arrest. Reinventing these in a yet weaker form as 'TPIMs' does not remove the fundamental problem - that those detained under them are denied a fair trial.
It's not surprising then that leading lawyers, including the former Director of Public Prosecutions, Lord Macdonald of River Glaven QC, who was asked by the government to scrutinize this latest Review of Counter-Terrorism Powers, still have reservations. He accepts that 'there are circumstances in which individuals believed to be involved in terrorist activity cannot presently be prosecuted, because there is insufficient or no admissible evidence against them for the time being'. But he is not convinced that the continued use of restrictions such as tagging devices will work: 'I would regard the use of curfews and tags in this context to be disproportionate, unnecessary and objectionable. They would serve no useful purpose.'
Liberty versus Security
The issue is particularly difficult for the Liberal Democrats. Before the general election, their leader Nick Clegg campaigned for the abolition of control orders. Now part of the Coalition, he must support the new measures - which do not by any stretch of the imagination go as far as to - as he claims - herald a change in 'fundamental design'. Nor are they 'proportionate'. But many in his party will be deeply disappointed that he hasn't persuaded his Conservative colleagues in the Cabinet to abandon the concept altogether.
Elsewhere, civil liberties groups are scathing. Shami Chakrabarti, director of Liberty, describes the new system as control orders 'in a slightly lower-fat form,' adding that, 'as before, the innocent may be punished without a fair hearing'.
There are, however, other proposed changes to legislation which do, to some extent, revert the balance toward civil liberties, although even in these cases many are cautious propositions which do not suggest reverting entirely to the status quo before 9/11.
There are planned changes to the rules regarding terrorist suspects who are arrested on harder evidence, with a view to actually going to court. As widely predicted, twenty-eight-day detention without charge is to be reduced back to fourteen days as the standard maximum period that terrorist suspects in this category can be detained before charge or release - way below the ninety-day period suggested in 2005, but still higher than the two-day period non-terrorist suspects can be held before police must apply to the courts for an extension.
Furthermore, there will still be provision in draft primary legislation for this period to be temporarily increased to twenty-eight days in exceptional circumstances.
The indiscriminate use of terrorism stop and search powers provided under Section 44 of the Terrorism Act 2000 will end. This does mark a move towards a more lenient set of rules. Instead, senior police officer s will only be allowed to authorize stop and search powers where they have reason to suspect a terrorist attack will take place and searches are necessary to prevent it. This could potentially happen around an event such as the 2012 Olympics, or where specific intelligence has been received.
There are moves in the new Review to prevent 'mission creep', where laws introduced to tackle terrorism have been used instead to deal with low-level offences. Local authorities will no longer be able to use RIPA (Regulation of Investigatory Powers Act) laws except to prevent serious crime, and only when approved by a magistrate.
The new measures will not abate political argument on how to tackle terrorism. The Home Secretary Theresa May says they 'will restore our civil liberties while still allowing the police and security services to protect us', while the shadow Home Secretary Yvette Cooper claims they still leave gaps in security because of 'political horse-trading' over the new measures by coalition ministers.
The new Review will now be extensively debated in parliament. And there are further ongoing investigations into other aspects of counter-terrorism legislation, including the 'Contest' strategy and the laws covering border security. The sensitive issue of whether to use intercept evidence extensively in court also is also still under review.
These latest measures will go some way to appease those who believe UK anti-terrorism laws have become too draconian. But they will not please many civil libertarians - or some in the law enforcement agencies who believe tougher laws are a necessity in the current climate.
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