Wednesday, 26 January 2011

Control Orders to become T-Pims : A rose by any other name ?

".. that which we call a rose by any other name would smell as sweet ..." Romeo and Juliet Act II Scene II - William Shakespeare

The Home Secretary has announced the outcome of the Review of Counter-terrorism and Security Powers.  Alongside the review is a report by Lord Macdonald of River Glaven QC who provided independent oversight of the review process. 

The review looked at 6 powers: 
  • Detention of suspects before charge; 
  • Stop and Search and Photography; 
  • use by local authorities of powers in the Regulation of Investigatory Powers Act 2000 (RIPA); 
  • measures to deal with organisations which promote hatred; 
  • Deportation with assurances
  • control orders.

The review found that some of the powers were neither proportionate nor necessary and certain changes are now planned.  A return to 14 days as the standard maximum period of detention before charge or release; amendment of the terrorism stop and search powers so that they are available only in more limited situations; greater restrictions on the use by local authorities of RIPA 2000 (including magistrate authorisation); stronger effort to deport foreign nationals involved in terrorist activities; replacement of the control order system with new "terrorism prevention and investigation measures" (T-Pim).  

In addition to this, the Home Secretary has made it clear that further areas are to be reviewed.  These include use of powers in Schedule 7 of the Terrorism Act 2000 and how more use can be made of intercept evidence in court.

Many will welcome what, on its face, seems to be a more proportionate response to some of the undoubted problems being faced at the leading edge of fighting terrorism.  Study of the detail will, as always, be necessary in order to draw more considered conclusions.  The commitment to reducing detention without charge to a maximum of 14 days is welcome though legislation is to be prepared to enable this to be extended back to 28 days if exceptional circumstances arise.   T-Pim will be seen by some as a rose by any other name.  Nevertheless, the T-Pim regime appears to be less restrictive than the control order regime in which, for example, suspects can be made to relocate to another area etc.  However, again there will be legislation drawn up to enable to return to a more restrictive regime if exceptional circumstances arise.

Implementation of these changes will require the enactment of primary legislation.  Meanwhile, the various existing powers will continue in force.

The Home Secretary's statement to Parliament is here.  See also Law and Lawyers post on Control Orders
"Easing of Control Orders makes this a good day for civil liberties" - Guardian 26th January
"Control orders: home secretary tables watered-down regime" - Guardian 26th January

Addendum 27th January 2011:  The Times editorial stated that the Home Secretary has diluted rather than abolished the control order regime.  It is still an affront to justice and should be replaced by better surveillance.  The rebranding does nothing to alter the basic injustice of the control order regime.  The founding presumption of British justice is that we are innocent and have to be proven guilty.  By imposing a form of imprisonment, even without charge, let alone without trial, control orders (are) a breach of a vital principle.  The best response to the terrorist threat is (they argued) to improve and intensify the surveillance of suspects.  This will be expensive and time-consuming but would be worth it.  A further article - "£80m to step up surveillance after end of anti-terror control orders" - points out that Lord Macdonald QC was critical of the replacement measures for control orders.

The Guardian's editorial (here)stated that the government has not found a way to abolish the distasteful practice of restricting the liberty of suspects without the prospect of prosecution or trial.  It has fallen short of hopes of ridding the law of this particular bit of authoritarianism.  The government's proposals sustain - and by removing the need for regular parliamentary approval arguably entrench - the home secretary's ability to restrict the liberty of citizens without putting a case against them or securing a prosecution.  They concluded by saying that the precise terms of the replacement for control orders has been fudged even if some of the worst excesses will be removed.

The Guardian's view about entrenching these powers into the law has cogency.  It could well be preferable for parliament to insist on retaining the right to periodically vote on these exceptional powers.  The Independent Reviewer Reports could perhaps form a basis for such a debate and vote.

The Defence Brief blog carried an interesting view on this subject - Control Order Lite.
Law think also has an interesting view which considers some of Lord Macdonald's views - see "Losing control ... orders? Theresa May, Lord Macdonald and TPIMs."  


  1. T-Pim (which sounds like it could taste quite nice with some lemonade and chopped cucumber) seems a bit like a re-branding exercise to me. Sure there are enough changes to make things look a bit new. But really it's the same old thing.

    It does leave me wondering why, if these people are so dangerous are the Government not pushing for more restrictions not less? Or, better still, why not bring them to trial and be done with it?

  2. Defence Brief - yes, personally I am inclined to agree with you. Of course there is lots of politics ("face-saving") behind all this. I will be putting an Addendum on it this evening in the light of additional press comment.

    I was cautious in the post because the detail needs to be examined. Sometimes things are presented to look relatively acceptable but there might be stings in the tail. For example, there is to be more surveillance but they have not made it clear who will be the subjects of this. Also, the deportation with assurances business is more than likely to take them into head-on conflict with human rights.

    Have attended an interesting session today with Magistrates and their Legal Advisers on criminal procedure rules. Most interesting. Hope to do a post on this soon. Would appreciate any views you have once the post comes up.