The debate on control orders

The UK government has proposed what one Labour politician calls "the most substantial extension of the state’s executive powers over the citizen for 300 years" in its attempts to control the actions of suspected terrorists.1

In a speech to the House of Commons on 26 January, Home Secretary Charles Clarke said that there should be a "new mechanism - control orders - for containing and disrupting those whom we cannot prosecute or deport" on suspicion of terrorist activities.2

The key measure is that these control orders are applicable to any suspected terrorist, regardless of whether the suspect holds UK citizenship. "We intend that such orders be capable of general application to any suspected terrorist irrespective of nationality or, for most controls, of the nature of the terrorist activity - whether international or domestic - and that they should enable us to impose conditions constraining the ability of those subject to the orders to engage in terrorist-related activities," Clarke said on 26 January.

The Home Secretary will be solely responsible for determining whether there are reasonable grounds, using undisclosed intelligence gathered by the Security Service MI5, for suspecting that an individual is or has been connected with terrorism.

The range of controls is supposed to be proportional to the risk posed by the suspected terrorist, Clarke said, with a breach in the order punished by imprisonment imposed by a judicial court.3

The controls range from restrictions of movement and association or communication with named individuals; imposition of curfews and/or tagging; bars on access to the Internet and forms of technology; and, at the most extreme, detention at home. Families and friends can also be monitored, Clarke said.

There will be independent judicial scrutiny of evidence, in open and closed session, against the imposition of a control order or its amendment. A court would also have the chance to review the measure, as warranted by circumstances.

In his speech, Clarke added that extensive efforts were being made to increase the number of people that could be deported. Under existing UK law, the government is prevented from sending people back to their countries of origin if, for example, they are likely to face the death penalty.

A third part of the Home Secretary’s speech was concerned with trying to increase the chances of prosecution of suspected terrorists by a court. The main political opposition parties in the UK have called for the use of intercepts, such as phone tapping, as admissible evidence in court.4

So far, the government has rejected this measure. "The review of intercept as evidence found no evidence to support this [view that those detained could be prosecuted]," Clarke said. "Intercepts provide only part of the intelligence against individuals, and sometimes a small part; it does not stand alone… The evidential use of intercept would be likely to help secure a modest increase in convictions of some serious criminals but not terrorists."

The proposals, if passed by Parliament, would change the existing Anti-terrorism, Crime and Security Act 2001. Part 4 of the 2001 Act allows the government to detain indefinitely and without judicial review foreigners in the UK that could not be deported.

A total of 17 people had been detained under these orders. However, Part 4 had been challenged in the UK’s highest court; on 16 December the House of Lords Judicial Committee quashed the government’s right to imprison the suspected terrorists.

The committee said that Part 4 broke the European Convention on Human Rights, as it discriminated between UK and foreign nationals and was not a proportionate response to their alleged threat of terrorism. Also, on 1 February an Egyptian suspected of terrorism offences, known as ‘C’, was released after three years in prison without trial, as the Home Secretary decided that weight of evidence no longer warranted detention.

Senior figures have questioned whether the proposed control orders - which effectively replace prison detention with house arrest for a potentially wider number of people as the harshest punishment - are an effective response to terrorist threats.

For instance, George Churchill-Coleman, the former head of Scotland Yard’s anti-terrorist squad in the 1980s and 1990s, said that house arrest was "not practical" and threatened to further marginalise minorities. "I have a horrible feeling that we are sinking into a police state, and that’s not good for anybody," he said. "We live in a democracy and we should police on those standards."5

Other democracies have been reluctant to countenance such unconstrained executive power. Germany does not detain people without charge.6 France, Italy and Spain can hold suspects in jail for up to four years without charge while investigations continue, although the UK has rejected this approach in favour of its ‘adversarial’ legal tradition.

During the latest Palestinian-Israeli violence, in March 2002 Israel increased the period of detention for suspects captured in occupied territories from eight to 18 days, with access to counsel barred for that period. The Israeli Supreme Court subsequently struck down the delay.7

The scale of the military operation and the number of detainees, as well as the idea that the judiciary should defer to the military in a time of combat and the need for time to conduct a successful interrogation, failed to sway the Israeli court, which said: "A society is measured, among other things, by the relative weight it attributes to personal liberty."8

However, since the 11 September 2001 terrorist attacks the US has effectively allowed indefinite confinement with no access to courts, counsel or the outside world on the President’s decision, which is based on undisclosed intelligence reports where the accused has no right to respond.

The judicial response in the US has been muted, despite the fact that never before in a time of war had the President’s powers as commander-in-chief been placed so wholly beyond judicial scrutiny.9 Stephen Schulhofer, professor of law at New York University, argues that the commander-in-chief clause in Article II of the US constitution was designed to place the military under civilian control, not to place civilians under military control.10

In the US ordinary legal safeguards have been diluted due to perceived special circumstances not applied in previous wars. In the UK, however, the reverse was true even before the post-11 September focus on Islamic terrorism.

The major domestic threat to UK security in recent years dates owes its origins to the 1922 partition of Ireland, under which the northern six (Protestant-majority) counties remained under UK rule. The often bitter and violent confrontation in the province between Unionists and Republicans intensified in the 1960s. In the 20 years to 1990, more than 2,750 people were killed in Northern Ireland alone - out of a population of 1.5 million.

From a beginning of virtually untrammelled military and executive power, however, UK legislation and practice has evolved to reflect a growing view that such measures were unjust and counterproductive.

Emergency powers in Northern Ireland from 1922 had included the right of warrantless arrest for interrogation without suspicion for 48 hours; investigative detention for up to 28 days; and indefinite internment. Internment had been used by the UK authorities in the First and Second World Wars and was reintroduced in Northern Ireland in the 1970s.

These once-sweeping powers have been whittled down. This is partly because "internment without trial creates martyrs", as opposition Conservative Party leader Michael Howard said in February.11

For the proposed control orders, the detainees see little difference between house arrest and prison if no charges are brought before a court. Ben Emmerson, who represents two of the UK’s 17 detainees, said that his clients preferred to stay in jail, as releasing them into house arrest was "merely swapping one form of executive detention for another".12

Sir Winston Churchill, who, as Prime Minister, supported the 1940 introduction of internment in the UK, later regretted the move. In 1943 he commented: "The power of the Executive to cast a man into prison without formulating any charge known to law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government."13

This points to a significant constitutional question facing the West, according to Schulhofer: "Which is the more serious danger, an insufficiently or overly constrained executive - and when?"

James Mawson previously served as an International Editor at the Financial Times, and continues to write for the Independent on Sunday business section and the Financial Times

James Mawson previously served as an International Editor at the Financial Times, and continues to write for both the Independent on Sunday business section and the Financial Times.

Notes:

1 Bob Marshall-Andrews, a Labour MP and QC, quoted by The Guardian, 28 January, 2005.

2 Clarke’s speech transcribed by Hansard published by Stateswatch News Online.

3 ibid

4 Reuters, 2 February

5 The Guardian, 28 January.

6 The Sunday Times, 30 January

7 Stephen Schulhofer’s article in the August edition of the Michigan Law Review on ‘Checks and balances in wartime: American, British and Israeli experiences’

8 ibid

9 ibid

10 ibid

11 Reuters, 2 February

12 Reuters 1 February

13 Schulhofer, ibid

UK Home Secretary Charles Clarke has unveiled proposals for "a new mechanism... for containing and disrupting those whom we cannot prosecute or deport" but still suspect of terrorist activities. (Source: Home Office)

Under the control orders proposed by the Home Secretary, the machinery of the state would be used to monitor the movements of suspected terrorists. (Source: Jane’s/Patrick Allen)

Whereas the government of Prime Minister Ariel Sharon (left) has found some of its detention methods restricted by the Israeli Supreme Court, the US administration of President George W Bush (right) has been able to detain suspects without much intervention from the judiciary.