A small silver lining for David Cameron in the ‘cash for access scandal’: on a quieter day, today’s report on the coalition’s replacement of control orders with ‘Terrorism Prevention and Investigation Measures’ (TPIMs) might have got more attention. The report, published by the Independent Reviewer of counter-terrorism legislation, David Anderson QC, makes for difficult reading for ministers.
Before looking at the detail of the report, it is worth remembering that control orders were always a second-best policy. Their origin lies in the dilemma, which no government looks likely to solve any time soon, of what to do with someone whom the authorities suspect of involvement in terrorism, but who cannot be prosecuted — nor, if they are a foreign national, deported. Prosecution can be impossible either because the information the authorities have on the suspect is not of a kind that would support a prosecution, or because revealing that information would endanger our intelligence services.
The last government introduced control orders in 2005, after the courts ruled indefinite detention unacceptable, while continuing to insist on very demanding requirements on deportation — effectively ruling it out for many of the individuals in question. They were strongly criticised by civil liberties campaigners, and remained a totemic issue for them, even though the level of judicial scrutiny and parliamentary oversight rendered the use of terms like ‘police state’ somewhat ridiculous, even though control orders in particular had a far more restricted impact than, for example, the over-use of stop and search under Section 44 — and even though the campaigners’ own predictions for how widely the orders would be used proved excessive. In the end, they were applied to a total of 52 people between 2005 and 2011, around half foreign and half British, and all of them suspected of involvement in terrorism associated with Islamic extremism.
In opposition, both coalition parties had actively courted civil liberties campaigners, and both indicated they were strongly minded to scrap control orders. But the coalition agreement committed only to a review; and Conservative ministers started to be swayed by the other side of the argument while the Lib Dems remained firm. In the autumn of 2010, Cameron was famously reported as describing the issue as ‘heading for a ****ing car crash’. By early 2011 they had hammered out a compromise, retaining some elements of the control orders regime, watering down others, and clumsily rebadging the whole thing as ‘TPIMs’, which came into force in January of this year.
Looking back on the previous regime, Anderson notes that ‘there are good reasons to believe that control orders fulfilled their primary function of disrupting terrorist activity’, and that ‘control orders are likely also to have released intelligence resources for use in relation to other targets’. Against some of the wilder claims of the civil liberties campaigners (and indeed the coalition parties in opposition) he notes that ‘a conscientious administrative procedure, coupled with close judicial scrutiny and an improved disclosure regime, ensured a substantial degree of fairness to the subject’.
Anderson’s report also usefully identifies the two most significant respects in which TPIMs are weaker than control orders. The first is the new maximum two-year time limit. Control orders were indefinite, and several ran for more than four years. The second is the removal of the power to relocate controlled persons against their will. This was an element of the previous regime which Anderson notes was ‘prized for national security reasons’. It was used for just under half of all control orders, and was in place for six of the nine individuals under control orders at the time they were scrapped.
These changes are in my view significant and unwelcome. There are, however, some respects in which the new legislation is an improvement, and should be recognised as such even by defenders of the previous regime. The first is that the nature of the restrictions that can be placed on individuals are fully specified in the legislation, whereas the previous regime used an illustrative list. The second is that the previous evidential requirement of ‘reasonable suspicion’ has been replaced with that of ‘reasonable belief’.
While both these moves are welcome, it should be noted that they would not have changed actual practice. The authorities did not in fact add new requirements to those on the illustrative list, and there is no evidence or suggestion that the previous evidential requirement was tested near the limit. To anyone who is aware of the level of the current threat, the relatively small number of control orders — 52 over six years — suggests a high evidential test. Anderson records his view that every one of the 52 would in fact have satisfied the new, more demanding evidential test, and all those who were under a control order at the time of the change were immediately placed under a TPIM.
Anderson’s overall assessment, in terms of how the new regime affects our vulnerability to the terrorist threat, is admirably clear. ‘In summary,’ he concludes, ‘control orders were an effective means of protecting the public from a small number of suspected terrorists who presented a substantial risk to national security, but whom it was not feasible to prosecute’. The move away from control orders was a ‘political’ decision and ‘unlikely to further the requirements of national security — rather the reverse’. The government has sought to mitigate the increased risk with extra surveillance resources (at extra cost, or diversion from other tasks), and Anderson notes that ‘MI5, which is best placed to judge, has accepted that there should be no substantial increase in overall risk’ (emphasis mine).
There is of course no way to eliminate risk altogether, and all political parties should accept, and be clear in their public statements, that there is often an ineluctable trade-off between risk and civil liberties. There is no single right answer about how to approach this trade-off, and in the end, when it comes to evaluating each government’s attempt, people have to make up their own minds. Today’s report offers much useful material in trying to do so.