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2 December 2010updated 09 Sep 2021 8:33am

Out of control

Britain’s anti-terrorist legislation is a source of shame, but reforming it poses the greatest threa

By Philipe Sands and Alex Bailin

Five days after the attacks of 11 September 2001, President Bush declared: “This crusade – this war on terrorism – is going to take a while.” Since then, there have been terror attacks around the world, including the London bombings of July 2005, which led to the pronouncement by the then prime minister, Tony Blair, that “the rules of the game have changed”.

In the name of the “war on terror”, many people have been detained without charge, systematic torture has been perpetrated, and wars have been fought in Afghanistan and Iraq. Millions of new refugees have been ­created. Whether these actions have made us any safer is a matter of debate. Among the measures taken in this country under the pretext of national security are new approaches to detention: a fourfold increase in the limit on pre-charge detention, from seven to 28 days, and the adoption of control orders, a form of ­internment imposed on selected individuals who are said to pose a terrorist threat.

These and other measures are inconsistent with this country’s most fundamental legal precepts, dating back to the Magna Carta. After 11 September 2001, the Labour government led by Blair undermined the international rule of law, undoing the ­precious legacy of basic rights instituted by the Attlee government. The achievements of the Human Rights Act (1998) and the Freedom of Information Act (2000) were followed by a litany of wrongs. Among them was Britain’s decision to deviate from the European Convention on Human Rights by authorising indefinite detention without charge or trial of non-nationals who could not be deported – the only member of the Council of Europe to do so. Britain also ­argued for the admissibility in English proceedings of evidence obtained by torture, and failed to condemn publicly the conditions at Guantanamo Bay.

Against this deeply troubling background, reflected in a series of bruising battles between the executive and the judiciary in which the ­latter – fortunately – prevailed, the new government came into office with a commitment to restore the values reflected in the protection of basic legal rights. In May, the coalition’s programme for government announced a clean break: the erosion of fundamental human freedoms would end, and historic civil liberties and the rights of individuals would be restored “in keeping with Britain’s tradition of freedom and fairness”. The new government announced “a full programme of measures to reverse the ­substantial erosion of civil liberties”, including an urgent review of “control orders” and a wider review of counter-terrorist legislation.

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Since then, the government has moved forward incrementally. In July, it announced a ­judicial inquiry into allegations of British ­complicity in torture. On 16 November, Ken Clarke, the Justice Secretary, confirmed a confidential financial settlement with 16 former detainees alleging British complicity in torture and other abuses at Guantanamo and elsewhere. These actions might indicate that the government is serious about restoring the country’s commitment to the rule of law and respect for fundamental civil and political rights. They are merely a prelude, however, to politically difficult decisions that lie ahead.

28 days later

Shortly, the government will announce the outcome of its much-heralded, but politically charged, anti-terrorism review. The announcement has been delayed, reflecting sharp differences among Conservatives, between some Con­servatives and the Lib Dems, and between the intelligence services and other parts of ­government. Two issues stand out: the future of control orders and the 28-day period for ­detention without charge.

The review is being carried out by the Office for Security and Counter-Terrorism (OSCT), which was set up by John Reid in 2007. It will report to the Home Secretary, Theresa May, and is being independently assessed by the Lib Dem peer Lord Macdonald QC. He has made it clear that he will speak robustly and publicly in defence of his views. The “car crash” that David Cameron fears (as he reportedly described the issue to the Home Secretary in October) may be about to occur. Its causes are apparent.

The OSCT is defending its handiwork, having taken the lead over the past four years in promoting control orders and the 28-day limit. Little surprise, then, that it might want to preserve the status quo, supported by the intelligence services with which it seems intimately connected. That said, the security services have ­recently implied that they are “not wedded” to existing policies, suggesting that the groundwork is being laid for a changed approach.

Before the 11 September attacks, the pre-charge detention period was limited to a maximum of seven days. In 2003, it was extended to 14 days, although Blair wanted 90 days; and in 2006, it was extended to 28 days. Pre-charge detention is essentially a form of internment and, at 28 days, the UK limit exceeds that of any other democracy within the 33-member Organisation for Economic Co-operation and Development (OECD), including several that have suffered the scourge of serious terrorist attacks in recent years. In the US, the maximum period for pre-charge detention is 48 hours.

Since 2006, only five people have been held for more than 26 days and none has been convicted of terrorist offences: three were released without charge, while the other two were charged with terrorist offences but were later acquitted. In the past two years, not a single person has been held longer than 14 days before being charged or released. On an evidence-based approach, there is no argument to oppose a reduction of pre-charge detention to 14 days. As Lord Macdonald (as director of public prosecutions) put it in 2007: “It’s up to parliament whether it wants to proceed on hypotheticals, rather than the evidence we have now.”

That a reduction to 14 days is “non-negotiable” for the Lib Dems, and the shadow home secretary, Ed Balls, declared on 21 November that Labour got its anti-terror policy wrong and he would support a reduction, seem to suggest that pre-charge detention will be cut to 14 days. Control orders are more ­entrenched. They were born of the Labour government’s effort following 11 September 2001 to detain, without charge or trial, foreign nationals suspected of engagement with terrorism. The project was dealt a fatal blow by the law lords in the landmark “Belmarsh” judgment in December 2004: in the face of evidence that British nationals posing an equivalent threat were treated less harshly, they ruled that the detention of foreigners without charge or trial was unlawful, being discriminatory and disproportionate.

The government responded with control orders that applied to foreign and British citizens alike. A system of total house arrest and almost complete isolation evolved from a scheme that placed no limits on the extent of restrictions. Significantly, a person subject to a control order typically could not even know the substance of the case against him, or any of the evidence on which it was based; the system relied on appointed special advocates who were permitted to see the secret evidence relied on by the government but were unable to communicate to the client what had been seen. The most basic questions from a person under a control order – “What am I supposed to have done?” or “When will all this end?” – could not be answered by the detainee’s legal representative.

This gave rise to years of litigation by people subject to control orders, involving two cases before the House of Lords and a visit to the Grand Chamber of the European Court of Human Rights. Eventually, the House of Lords ruled that a person subject to a control order is entitled to know the gist of the case against him, so he can mount a meaningful challenge. That the Labour government should have resisted such a sensible conclusion says much about the state into which it had fallen.

But even today, after extensive judicial intervention, the results remain unattractive. Over their life, control orders have affected about
50 people and currently nine individuals are subject to them. Remarkably, all are British: a system designed to control foreign alleged terrorists who could not be deported has morphed into a system for interning locals.

Faced with continuing litigation, the gov­ernment frequently drops cases to avoid disclosing information. Described by one res­pected ­advocate as playing “a game of executive legal chicken”, the government constantly tries to extend the limits of permissible house arrest for up to 16 hours a day, accompanied by measures such as electronic tagging, geographical curfew, prohibitions on private communications, social isolation and mandatory searches. The courts have increasingly ruled that such measures, considered collectively, amount to imprisonment without trial – in June, the Supreme Court held that a man, subject to a 16-hour curfew, electronic tagging and required to live apart from his family in another part of the country, was effectively deprived of his liberty.

And for what real benefit? It is hard to see what tangible advantages are brought by a rump system of control orders that could not be obtained by surveillance, travel restrictions and home visits. The main justification is that they are necessary because it is not possible to bring criminal charges against certain individuals. This is misconceived, as it is largely premised on the view that the use of intercepted communications as evidence is not admissible in criminal proceedings under any circumstances. The coalition’s programme announced that the government “will seek to find a practical way to allow the use of intercept evidence in court”. It should do so now – and urgently.

Let battle commence

It is difficult to identify a respectable rationale for the system of control orders, which inflames passions in affected communities at home and signals to those abroad that their efforts are producing results. The conviction on 18 November of an alleged al-Qaeda member, Ahmed Ghailani, in a New York federal court, resulting in a 20-year sentence, is testament to the effectiveness of regular criminal proced­ures. In contrast, Britain’s continued reliance on control orders rather than ordinary trials is fundamentally flawed. Control orders are used instead of criminal prosecutions because evidence of intercepted communications is not permitted in criminal trials, even though there is no human rights or other tenable reason for this prohibition. Britain is one of the only countries in the world to have such a ban. Recent conviction rates in terrorist trials are high. In short, conventional criminal trials should be used instead. This is without considering the many successes of surveillance and intelligence-gathering in disrupting terror plots.

Politically, the battle lines are drawn. Theresa May still supports control orders, encouraged by the heads of the intelligence services. She can rely on the Lib Dem peer and outgoing independent terrorism reviewer, Lord Carlile, who stated in February, before the election, that he was “unable to find, or devise, a suitable alternative for the important residue of cases that cannot be dealt with by prosecution”.

His statement was warmly welcomed by the then Labour home secretary, Alan Johnson. On the other side, the Tory MP David Davis has been vociferous in leading the opposition, together with the Lib Dem Energy Secretary, Chris Huhne, who remains opposed to control orders. The Attorney General, Dominic Grieve, and the Justice Secretary, Ken Clarke, are also said to be opposed to the extension of the orders. The final decision will be taken by David Cameron and Nick Clegg. The Prime Minister recognises the dangers ahead and Clegg has made it clear that the issue is non-negotiable – well aware that allowing control orders to be extended will be one step too far for many Lib Dem supporters, who continue to stand by him with gritted teeth through the government’s economic and educational policies.

This brings us to Labour, silent until last weekend. Ed Miliband has neutralised the Iraq issue by declaring the war there to have been “wrong”. Now he has to grapple with fundamental rights, knowing that opposing control orders will bring charges of opportunism, given that he was recently a leading member of a government which supported them. Against that, he knows dropping support for them would drive a wedge between the coalition partners. Clegg’s decision to stand firm means that Miliband has the power to kill off control orders, given the parliamentary arithmetic.
If he is brave, and wants to move Labour back to a respectable position on human rights, he’ll support Clegg and Huhne. Doing so promptly will bring plaudits for doing the right thing and forging a broad consensus on a matter of vital national and reputational importance.

Philippe Sands QC is author of “Torture Team” (2008), professor of law at UCL and a barrister at Matrix Chambers; Alex Bailin QC is a fellow barrister at Matrix Chambers.

Control orders: in Quotes

Alan Johnson, February 2010
“I believe [the Prevention of Terrorism] Act continues to strike the right balance between protecting the public and safeguarding the rights of the individual.”

Chris Huhne, February 2010
“Control orders are pure Kafka and must end.”

Nick Clegg, March 2010
“We’re the only party who voted last week against control orders; we think that control orders are wrong.”

Ken Clarke, October 2010
“This is a very difficult problem that Theresa May is facing . . . But it has to be solved in a way that is compatible with
our civil liberties.”

Ed Balls, November 2010
“The jury’s still out . . . We don’t yet know if an alternative to control orders can work.”

David Cameron, October 2010
“We’re heading for a fucking car crash.”

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