One of the few redeeming features of the coalition government has been its commitment to civil liberties. Since the election, identity cards have been scrapped, stop-and-search has been suspended and greater regulation of CCTV has been introduced. But faced with the challenge of repealing New Labour's draconian anti-terrorism legislation, ministers seem likely to fall at the first hurdle.
The government's counterterrorism review is expected to approve the continued use of "control orders" - better described as a kind of house arrest. Indeed, the coalition is known to have imposed two new control orders since taking office in May. The Home Secretary, Theresa May, has already rebuked the former director of public prosecutions Ken Macdonald, who is overseeing the review, for warning that he would publicly denounce any decision to retain the orders. Like all too many of her predecessors, Mrs May has been captured by the Whitehall securocrats, who jealously guard the powers awarded to them. The discovery of the cargo bombs plot has strengthened their hand in recent days.
Yet control orders remain an illiberal and ineffective response to the continued terrorist threat. In the five years since the Labour government introduced them, the case for their repeal has strengthened. The orders undermine the presumption of innocence, a cornerstone of British liberty since Magna Carta, and allow punishment without trial. The ability of the executive directly to impose a control order represents a grave violation of judicial independence.
But not only have control orders undermined liberty, they have also endangered public safety. Of the 45 men subjected to control orders since 2005, at least seven have absconded, including Zeeshan Siddiqui, who was allegedly a close associate of the London Underground bomber Shehzad Tanweer. Spurious talk of a "balance" between liberty and security masks the reality that control orders have advanced neither. As Benjamin Franklin presciently argued: "Those who would give up essential liberty to purchase a little temporary safety deserve neither and will lose both."
The advocates of control orders would be more convincing if there were no liberal alternative. But there is: to permit the use of intercept evidence and to charge those suspected of terrorism in open court. The Liberal Democrats' manifesto was admirably clear on this point: "The best way to combat terrorism is to prosecute terrorists, not give away hard-won British freedoms." Since then, the Energy Secretary, Chris Huhne, has reaffirmed his opposition to the "Kafka-esque" control orders. Should he and the other Liberal Democrat cabinet ministers now fall into line, their reputations will suffer irrevocable damage. Nick Clegg claims that his presence in the government has pushed Conservative ministers in a more liberal direction. On control orders, he has a chance to live up to this boast. The issue is also a test of Ed Miliband's promise to remake Labour as a party of civil liberties. He must resist the influence of those MPs who are never happier than when attacking the Tories as "soft on terror". Even the former security minister Tony McNulty - one of those originally responsible for the legislation - now admits that control orders are a "clumsy tool" that should be abandoned.
Beyond control orders, the government deserves credit for its plan to reduce the current, 28-day detention limit - the longest pre-charge detention period of any western democracy - to 14 days. But ministers must not reserve the option to put suspects on a further 14 days of "very restricted bail". The coalition came to power vowing to reverse "the substantial erosion of civil liberties" under Labour and to "roll back state intrusion". If it is to live up to these lofty promises, it must face down the security establishment and abandon an anti-terror strategy that has failed.