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The Control Order Story Has Come Full Circle

Jacqui Smith can't resist reminding us that she was right about control orders, something the coalition seems to be about to recognise.

By Jacqui Smith

1 Sep 2011, 22:23

I hate to say I told you so .... but I did.  Today’s announcement of an emergency Bill to enable the Home Secretary to relocate terrorist suspects effectively brings the Control Order story full circle.

In opposition, both Coalition parties pledged to get rid of Control orders.  In government, they blithely set off on the review of counter terror powers which supposedly would achieve this.  But less than eighteen months into government, all the powers and restrictions available to Labour Home Secretaries in the Control Order regime are on the verge of being reinstated. 

In contrast to the certainties of opposition, the responsibility of Government can sit heavy on your shoulders when you are faced with intelligence that someone living in our country appears to be planning to kill and maim his fellow citizens. 

In pursuing terrorists, we should always use prosecution as the first response.  However if you’re faced with intelligence that an individual is a real threat to British lives, but you can’t use that intelligence in court without putting other lives at risk and you can’t deport that person without putting their life at risk, you need to decide what to do.  Everybody – even Nick Clegg - accepts that there are some incredibly difficult cases where the criminal law just can’t reach the suspect.  The Control Order regime was devised because, in Government, you can’t just put those cases in the ‘too difficult’ pile.  They represent a real threat to life – a threat Governments are elected to address.

Control orders allowed restrictions to be placed on people – not just in terms of curfews, but also to limit travel abroad or use of the internet for example.   This description masks the considerable – and correct – safeguards in the system.  The Home Secretary has to be convinced of the nature and level of the threat posed by the individual; the controls proposed had to be tailored to the circumstances of each case; a court had to allow or review the order; all orders were judicially reviewed; orders are time limited; conditions are regularly reviewed and most orders were subject to specific legal challenge by those who were their subjects.

Of course, they’re imperfect and every Minister I knew who had responsibility for Control Orders has searched for alternatives.  The present government claimed in their Counter Terror review to have abolished Control Orders.  They got rid of the name – to replace it with the Terrorist Prevention and Investigation Measure.  But in my view – and that of the then independent reviewer of terrorism and Lib Dem Peer, Lord Carlile, they had nearly all the elements of the previous Control Order system. Much was made of the removal of ‘house arrest’.  However the average length of curfew on the 8 control orders in existence at the time of the review was just under 12 hours and the new regime would see overnight curfews of between 8 and 10 hours!  

Government hailed the fact that those subject to TPIMs would not have mobile phones removed and would not be made to go and live somewhere away from those they were plotting with.

The problem with this arose with the case of controlee CD who had been moved away from his home.  A judge upheld this relocation order and it became clear that the danger posed was unlikely to have gone away by January 2012 when the new regime will be introduced.

So today’s announcement sets the scene for the Home Secretary to be able to re-impose relocation and stronger restrictions on mobile phones.  Much has been made of how this will only ever be in exceptional circumstances.  But control orders have always only been for exceptional circumstances.  In June of this year, there were 12 in place.  Fewer than 50 people have ever been on a control order.  Rightly, this is far fewer than the hundreds of terrorism related cases which have been pursued through the courts.

Labour had already proposed to re-instate these powers in an amendment to the TPIM Bill to be discussed on Monday.  Today’s announcement is in response to this.  The Government could accept Labour’s amendment, but I doubt they will.  In the end, it isn’t the vehicle which is important, but the intended destination.  With today’s concessions, the Government has done what I said they should do at the time of the Counter Terror Review.  They’ve recognised that the Control Order regime was an imperfect, but necessary way to keep Britons safe – and they’ve put the protections back together again.