Lord Carlile, Discredited Advocate of Control Orders, Presents Flawed Alternative

A month ago, I wrote an article exploring how fault lines were opening up in the coalition government regarding control orders, a form of house arrest, depriving alleged “terror suspects” of most of their liberties on the basis of secret evidence, and without ever being charged or tried — or, for that matter, ever being questioned by the police or the security services. The Liberal Democrats, as a party (including Deputy Prime Minister Nick Clegg), are fundamentally opposed to the continued existence of the control order regime, which was introduced by the Labour government in 2005 after the Law Lords ruled that the government’s preferred method of dealing with foreign “terror suspects” — imprisoning them without charge or trial in Belmarsh, or in Broadmoor if, as a result, they lost their minds — was illegal.

Around 50 men have been subjected to control orders over the last six years, but now — in a clear sign of how a regime designed for foreign “terror suspects” has drifted dangerously into new territory — they apply only to British citizens, nine at present, who are mostly subjected to “internal exile,” required to relocate to other parts of the country, as though this was a perfectly acceptable way for citizens to be treated.

As I explained in my previous article, the LibDems are not the only politicians opposed to the retention of control orders. Tory opponents include the attorney general Dominic Grieve, who has described control orders as “a departure from our established principles [which] threaten our liberties greatly,” security minister Pauline Neville-Jones, a former chairwoman of the Joint Intelligence Committee, who told the Lords that the Tories would take office “with the aim, if we possibly can, of eliminating the control order regime,” the justice secretary Kenneth Clarke, and the maverick and outspoken MP David Davis, who threatened a Commons revolt if control orders are not dropped.

Another prominent opponent is the Liberal peer Lord Macdonald QC, appointed by the coalition government to head the counter-terrorism review which has been looking at the future of control orders, and whose conclusions are due to be published imminently. Lord Macdonald is implacably opposed to control orders, but is up against home secretary Theresa May and the Prime Minister, David Cameron, both of whom have been spooked by the security services, who have issued dark warnings about the importance of retaining the control order regime. Lord Macdonald was so incensed by the home secretary’s stance that he apparently wrote to her “warning that he would publicly denounce any decision to retain control orders” when the review is finally published, and when David Cameron was told about the fierce emotions engendered by control orders, he reportedly stated, “We are heading for a fucking car crash.”

On Monday, another supporter of control orders waded into the debate. Lord Carlile of Berriew QC was appointed by the Labour government as its independent reviewer of terrorism legislation, and, every year, issued a report concluding that control orders were still required. His “independence” has been called into question by numerous critics, of which one example, from a hearing of the Joint Committee on Human Rights in February this year, should suffice to demonstrate how, with even the best will, those too close to the machinery of secrecy may end up being infected by something less than objectivity. This is an exchange between the Chair, the Tory MP Andrew Dismore, and the human rights lawyer Gareth Peirce, who represents some of the men held on control orders, and others whom the government wishes to deport, who are imprisoned without charge or trial or held on deportation bail, in circumstances similar to those held on control orders:

Chairman: [O]ne of the concerns I have is that if somebody does such a very important and sensitive job for so long, inevitably they can lose some of their objectivity, because they are dealing with those same issues and the same people in the security services all the time, and I just wondered if such objectivity after such a long period of time may have worn a little thin.

Ms Peirce: I think there is a history of perhaps frank but unfortunate assessments, beginning with those who were interned [from December 2001 until the Law Lords ruled in December 2004 that this was in contravention of the Human Rights Act], in which Lord Carlile had stated: “I have seen everything that is in the secret evidence, I am completely satisfied the Home Secretary appropriately certificated the individual”, even in cases where SIAC [the Special Immigration Appeals Commission, the “secret court” that deals with these cases] itself came to an opposite view, in cases where ultimately the House of Lords condemned the process twice, where the European Court said, “This was utterly inadequate information”. And now we are into a different regime of control orders and Lord Carlile is again making assessments of the evidence and giving a view as to whether they are justified, and those who are on the receiving end of that simply see that as an extension of an unfairness when they do not know the position.

In the Daily Telegraph on Monday, in an article entitled, “A new type of control order is essential,” with the sub-heading, “Nick Clegg needs to consider the safety of 60 million people in his security review,” Lord Carlile took aim at the Deputy Prime Minister, setting the tone by stating, incorrectly, “We know that there may be up to 2,000 terrorists living in the United Kingdom,” when what this actually means is that the security services suspect that up to 2,000 people in the UK may have some sort of interest in or involvement in planning or discussing terrorist activities.

Moving on to the men held on control orders, a “cohort of individuals, currently less than a dozen, who cannot be prosecuted” for reasons that “include the protection of home and foreign intelligence sources, and the secrecy of technical surveillance methods,” Lord Carlile confidently stated, “Each of those dangerous individuals has been found by a senior judge, after exhaustive examination, to be rightly suspected of being a terrorist,” and then proceeded with some serious scaremongering, stating, “Within a few weeks from today they could be walking the streets unrestrained. Efforts would be made to watch them — but given that resources are not unlimited — this will have to be at the expense of vigilance against other potential terrorists, some equally dangerous, and who might be capable of prosecution.”

Turning his attention to Nick Clegg, he wrote, with apparent mind-reading skills, that Mr. Clegg “knows that those who have up-to-date knowledge of the intelligence and other evidence are right in their assessment of the threat,” because he “has been privy to the making of control orders since the general election.” He added, patronizingly, “Unfortunately, the writers of the Liberal Democrat manifesto had seen none of the intelligence before they declared that control orders would be abolished on the grounds that they are, as … Lord Macdonald QC opined in September 2009, a ”hopeless device.'”

Returning again to his mind-reading skills, he stated, “Mr. Clegg knows that he cannot reject out of hand the expert opinions of those who know the evidence and intelligence … Mr. Clegg knows that in political terms his position and credibility are threatened by the issue. He knows too that it would be unforgivable to play politics with public safety.”

Lord Carlile then proposed a three-tier system — “control order lite,” if you like — to replace the current regime:

First, for those who simply want to travel abroad to train as terrorists, we could have foreign travel restriction orders founded on a raised standard of proof of ‘”reasonable belief’” that the individual wishes to leave the UK for purposes connected with training a terrorist.

Second, we could have general travel restriction orders on reasonable belief that the individual has the more developed intent to participate in terrorist activity.

Third, for the most serious cases we could have activity restriction orders, where a judge was satisfied on the much raised standard of the balance of probabilities that the individual is a terrorist. The system would have an increasing scale of restrictions, including curfews (but not compulsory relocation) for the highest tier.

For Lord Carlile, this new system — of which “Mr Clegg and his advisers are aware” — is a suitable compromise, although he could not resist adding, in a final scaremongering flourish, “Other ideas may prove more acceptable,” so long as they do not “recklessly increase the risk against the greatest threat we face.”

Despite his claim that he has been able to “modify my previously expressed view,” Lord Carlile’s views have actually changed every little, and two fundamental problems remain. The first is that everything he believes to be necessary still hinges on the unacceptable use of secret evidence to deprive people of their liberty without charge or trial, and the second is that he maintains that those held on control orders — or, in future, under his three-tier system, should ministers be paying attention to him — “cannot be prosecuted” for reasons that “include the protection of home and foreign intelligence sources, and the secrecy of technical surveillance methods.”

Fortunately, for those who wish to see habeas corpus restored to the country of its origin, ensuring that no one can be deprived of their liberty without a fair trial, and for those who are proud of the traditions of open justice in this country, the solution to the first problem in Lord Carlile’s approach is to be found in the solution to the second. If Britain would join the rest of the world in accepting the use of intercept evidence, and in finding viable ways to protect sources in court, as explained in detail in this report by JUSTICE, the all-party law reform group (PDF), there would be no need for either control orders or Lord Carlile’s proposed three-tier approach.

In addition, although Lord Carlile bemoaned the cost of surveillance, he neatly skipped over the phenomenal cost of maintaining the control order regime, SIAC, and the rest of the secret evidence apparatus — money which would be better spent on surveillance, rather than clinging deperately to the ruins of a policy which was clearly inspired by the lawlessness of the Bush administration’s “War on Terror,” and which has been no less counter-productive in terms of undermining our fundamental values, and providing legitimate grievances for those tempted to listen to terrorist rhetoric.

In short, it is time to regain the moral high ground, and to regain our self-respect.

Note: For further information, see this page on the website of Liberty, where readers can email their MPs and sign a petition.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

For other articles dealing with Belmarsh, control orders, deportation bail, deportations and extraditions, see Abu Qatada: Law Lords and Government Endorse Torture (February 2009), Ex-Guantánamo prisoner refused entry into UK, held in deportation centre (February 2009), Home Secretary ignores Court decision, kidnaps bailed men and imprisons them in Belmarsh (February 2009), Britain’s insane secret terror evidence (March 2009), Torture taints all our lives (published in the Guardian’s Comment is free), Britain’s Guantánamo: Calling For An End To Secret Evidence, Five Stories From Britain’s Guantánamo: (1) Detainee Y, Five Stories From Britain’s Guantánamo: (2) Detainee BB, Five Stories From Britain’s Guantánamo: (3) Detainee U, Five Stories From Britain’s Guantánamo: (4) Hussain Al-Samamara, Five Stories From Britain’s Guantánamo: (5) Detainee Z, Britain’s Guantánamo: Fact or Fiction? (all April 2009), Taking liberties with our justice system and Death in Libya, betrayal in the West (both for the Guardian), Law Lords Condemn UK’s Use of Secret Evidence And Control Orders (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009), Britain’s Torture Troubles: What Tony Blair Knew (June 2009), Seven years of madness: the harrowing tale of Mahmoud Abu Rideh and Britain’s anti-terror laws, Would you be able to cope?: Letters by the children of control order detainee Mahmoud Abu Rideh, Control order detainee Mahmoud Abu Rideh to be allowed to leave the UK (all June 2009), Testing control orders and Dismantle the secret state (for the Guardian), UK government issues travel document to control order detainee Mahmoud Abu Rideh after horrific suicide attempt (July 2009), Secret evidence in the case of the North West 10 “terror suspects” (August 2009), Letting go of control orders (for the Guardian, September 2009), Another Blow To Britain’s Crumbling Control Order Regime (September 2009), UK Judge Approves Use of Secret Evidence in Guantánamo Case (November 2009), Calling Time On The Use Of Secret Evidence In The UK (December 2009), Compensation for control orders is a distraction (for the Guardian, January 2010), Control Orders Take Another Blow: Libyan Cartoonist Freed (Detainee DD) (January 2010), Control Orders: Solicitors’ Evidence before the Joint Committee on Human Rights, February 3, 2010 and Control Orders: Special Advocates’ Evidence before the Joint Committee on Human Rights, February 3, 2010 (both February 2010), Will Parliament Rid Us of the Cruel and Unjust Control Order Regime? (February 2010), Don’t renew control orders, CAMPACC, JUSTICE and the Joint Committee on Human Rights tell MPs (February 2010), Fahad Hashmi and Terrorist Hysteria in US Courts (April 2010), 98 MPs Who Supported Human Rights While Countering Terrorism (May 2010), UK Terror Ruling Provides Urgent Test for New Government (May 2010), An uncivilized society (in the Guardian), New letter to MPs asking them to oppose the use of secret evidence in UK courts, and to support the return from Guantánamo of Shaker Aamer (May 2010), Torture Complicity Under the Spotlight in Europe (Part One): The UK (July 2010), Fighting Ghosts: An Interview with Husein Al-Samamara (July 2010), Ruling sends message on control orders (for the Guardian, July 2010), UK Judges Endorse Double Standards on Terror Deportations (August 2010), In Memoriam: Faraj Hassan Alsaadi (1980-2010) (August 2010), An interview with Faraj Hassan Alsaadi (from 2007) (August 2010), UK Government Faces Major Rebellion on Control Orders (November 2010), Gareth Peirce Discusses Her New Book, “Dispatches from the Dark Side: On Torture and the Death of Justice” (November 2010), Are Control Orders About To Be Scrapped? (November 2010).