Control orders have been renamed with supposed adjustments, but in reality, they remain as controversial as ever.
The power to make control orders was voted through in 2005 as part of the Prevention of Terrorism Act. It gives the government the power to restrict an individual’s liberty for the purpose of “protecting members of the public from a risk of terrorism”. As well as a long list of restrictions such as place of work and residence, whom he speaks to, where he travels, use of certain services or facilities, movements at certain times of the day; there are obligations such as surrendering passports, allowing confiscation and examination of possessions, allowing electronic surveillance and admittance of specified people to certain premises. Moreover, there are extremely limited rights of appeal and no double jeopardy restrictions.
Unsurprisingly, this caused controversy, and has been challenged as breaching the European Convention of Human Rights. Article 5 states that while a government may “restrict liberty” they may not “deprive liberty” without just cause, which is stated as “war or other public emergency threatening the nation”. In June 2006, 6 control orders were nullified by a high court judge as breaching the ECHR.
In their 2010 election manifesto, the Liberal Democrats pledged to “scrap control orders”, a promise obviously broken in light of its recent rebranding as: TPIMS, “terrorist prevention and investigation measures”.
Whereas for control orders the Secretary of State needed “reasonable grounds to suspect” that an individual may pose a terrorist threat, now he must have “reasonable grounds to believe”. This may seem like a negligible difference in practical terms – it is also a minute difference legally.
There has been a noticeable change in power of Secretary of State – no longer will he have the power to exercise the more extreme bans on the suspect’s associations with other people, nor will he be able to put a ban on a suspect’s phone and internet use.
However, there has been no change in the power to inflict limited house arrest and curfews – or “overnight resident requirements” as they are now called, constant monitoring of suspects, travel bans and electronic tagging. A huge number of other activities are also within the power of the Secretary of State to ban or limit.
Another difference is that whereas control orders had no statute of limitations, there is a two-year limitation on TPIMS. However, if after two years any new information comes to light, giving the Secretary of State “reasonable grounds to believe” the suspect to still be a threat, the process can and will continue. Therefore, in essence, despite the two year limitation, the imposition of TPIMS on any individual is as potentially endless as control orders.
Given the criticism the current government gave the former for the “draconian” measures of preventing terrorism, the reformation we have seen from control orders to TPIMS is hardly impressive. On the plus side, it seems the LibDem pledge to reduce the limit of precharge detention from 28 to 14 days will go ahead, although it may be extended in exceptional cases. How exceptional, we are yet to see.
An optimistic view of these modest changes is to see them as a preliminary sign of change to come. A pessimist would point out that the suggestion made by Lord MacDonald, that control orders accompany a legitimate criminal investigation to the end of gathering evidence to prosecute the suspect in court, was not taken up.
While the government has promised to protect freedom more effectively, it has to be said that it has a long way to go before the “draconian” measures for which they so criticised Labour are to be truly reformed. TPIMS may have made some perfunctory changes but as it stands, the majority of people remain unconvinced.