Friday, 11 February 2011

Anti-Terror and the coalition.

You remember back in the day, when people like me were cautiously optimistic about the coalition? Well reading it back something strikes me, all the mainstream media coverage of all the things I talked about from last May to now is maybe a few hours worth. My passions, my reasons for backing the coalition in May are not economic. They are civil liberties, political and constitutional reform, and the general possibility of liberal governance for the first time in decades. And now is the time for a big bit of that list. As the government publishes details of the conclusions of its review of terror laws.

I've not been too keen to talk about the reporting of the government's big decisions, it's been avalanched by economics. Economics is important, of course it is. But it's also mainly lies. ... well not lies. By lies I mean "not scientifically rigorous", cf the existence of Marxist economists. I dont talk about economics on here because I dont waste my time thinking about it because I dont think there's any reason at all why I should back one side or the other. Of course it's perfectly obvious to everyone what the government should be doing at a time like this, and of course everyone can follow through the argument from first principles. The problem is that no two people seem to agree *what* is perfectly obvious.

This is a long way of saying I dont want to discuss the cuts. I've talked about specific cuts, I rallied against cuts to science funding, and was successful. I didn't rally against tuition fee rises because I dont think there has ever been a workable alternative to this bad and damaging decision. But mostly I've kept quiet on the most discussed issues, because that's not where my passions are.

Back in the day, I backed the coalition, this hinged on a few things. Headline repeals, ID cards, gone, DNA database, gone, 28 day detention, gone. Public consultation on a Great Repeal Bill ... you remember that ... been kicked into the long grass hasn't it? Turns out if you ask people what laws you want to repeal in a truly democratic way the largest contingent is crazy people, the next largest is those (like drug-legalisers) unacceptable to the media, the next are those (like the terrorist-shoot-on-sight people) proposing new and deeply illiberal laws. Update: well that moved fast. There was no sight of it when I started writing, then two days ago there were rumbings, and today it's been published this will have to be a totally separate post so sorry if this bill invalidates anything said below. After that are some genuine and rather minor reforms. Political and constitutional reform ... jury's still out on this one. Ken Clarke's ... existence. And then anti-terror laws.

This is big for the coalition. You've already scared off all the social democrats, all that's left of the Lib Dems are the old Liberals. So you need to be ... liberal. The most obvious and dramatic way to do this is with anti-terror laws. Terrorism exists, it's not as serious a danger to the public as, say, diabetes, but something must be done about it. Terrorism, like most crime, is an area where "liberal" is often seen as a dirty word. But here more than most liberalism is vital. The dangers of allowing a problem which obsesses the media and genuinely scares the public to become a reason to do things injurious to liberty is serious. We must act against terrorism. But we mustn't let public arguments be that terrorism is so serious that anything in response is acceptable.

So on this head we have a report on the Coalition's policy.

28 Day Detention

90 day pre-charge detention was a black day for the Blair government. To have people under arrest without knowing a charge against them is fundamentally unjust. It is sometimes necessary in an emergency to arrest someone before legal advice has been sought on exactly what legal category the crime would be in, likewise it is sometimes necessary to arrest someone on evidence not firm enough to ensure a guilty verdict, but with the expectation that such evidence will be discovered. However, as with all powers this must be limited. Must be approved by a judge on the basis of good evidence, must be time limited to stop the creep of abuse. etc etc.

The headline is 28 day detention is gone.
The 28 day order should be allowed to lapse so that the maximum period of pre-charge detention reverts to 14 days. 
 This is an improvement. One that will not be a great risk to public security.
To date  11 individuals have been held for over 14 days pre-charge detention ...
Six of these 11 people were held for the maximum 27-28 days: three were charged, three released without charge. ...

It has been claimed by David Davis MP (in the House of Commons on 14 July 2010) and by Liberty (in their 9 contribution to the review) that the evidence used to charge two of the people who were held for 27-28 days, was available before the 14 day point (at the
third and twelfth days respectively), and they could have been charged earlier. 
 So, a small change that doesn't put most prosecutions at risk but does prevent the false imprisonment of innocent people for nearly a month. This is something that should be applauded. Not by the Labour benches if reports of the debate are anything to go by but.

This is however backed up by another power:

 Emergency legislation extending the period of pre-charge detention to 28 days should be drafted and discussed with the Opposition, but not introduced, in order to deal with urgent situations when more than 14 days is considered necessary
So after an emergency the commons will vote on, and in this high-stress situation will certainly pass, a motion to deal with a small number of people who's names may already at this point be known. It's almost impossible to imagine how this could be done without prejudice. This is a bad solution to a bad problem. An improvement as hopefully this would be rare (... though I wouldn't be surprised if by slow creep the Olympics, the royal wedding, or any other large public event are pre-emptively declared emergencies), but still not the best that could be hoped.

Section 44.

If two words sum up abuse of terror powers better than any other then Section 44 are they. Section 44 of the Terrorism Act 2000 says:


(1)An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search—

(a)the vehicle;

(b)the driver of the vehicle;

(c)a passenger in the vehicle;

(d)anything in or on the vehicle or carried by the driver or a passenger.

(2)An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search—

(a)the pedestrian;

(b)anything carried by him.

And then lists as those capable as giving authorisation to (for small enough areas) people with ranks as low as assistant chief constables. Once such an order has been given then (section 45):

Exercise of power.

(1)The power conferred by an authorisation under section 44(1) or (2)—

(a)may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and

(b)may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind.

(2)A constable may seize and retain an article which he discovers in the course of a search by virtue of section 44(1) or (2) and which he reasonably suspects is intended to be used in connection with terrorism.

(3)A constable exercising the power conferred by an authorisation may not require a person to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves.

So this is an almost unlimited power to stop and harass any member of the public. And all the requirements that it be used for terrorist cases? Worth as much as the paper it's written on. To quote the report.
 The increase in use of section 44 (from around 42,000 in 06/07 to over 250,000 in 08/09 before falling to just over 100,000 in 09/10) and the nature of its use, has led to concern that there are no effective constraints on the use of the power.
And it's not useful for terrorist offences.

In Great Britain section 44 searches have not led to convictions for terrorism offences.  

I could go on at length about the initial disproportionate use against Black and Asian people, and the recent rise in searches of white people for no motive other than maintaining racial balance. But this has been dealt with very thoroughly elsewhere. One important issue is the use against photographers. Many people (especially in the Met and the BTP) seem to be acting under the impression that any photographer is fair game, and that the act gives them power to forceably delete any unwanted photographs. It does not, and stronger restrictions on them are necessary.

We must also consider the law.

In June 2010, the European Court of Human Rights (ECHR) made final its  decision in the case Gillan and Quinton which found the legislation to be in breach of Article 8 (the right to privacy and family life) of the European Convention on Human Rights (ECHR) because it was not “in accordance with the law”. The ECtHR found the legislation was too broadly expressed and the safeguards in place were not sufficient.
Once again a very liberal decision by the ECHR. This needs a response. It cannot be acceptable for hundreds of thousands of citizens to be injured by a measure found incompatible with human rights by an international court.

In considering the response the report says:

Repeal would be the simplest  way of implementing the ECHR judgment. But there remain arguments  against this on grounds of continued necessity.
... which seems in flat contraction of the line a few paragraphs up:

 In Great Britain section 44 searches have not led to convictions for terrorism offences.
If the power has *never* been used against an actual terrorist target then it *cannot* be necessary.

The response is to scrap Section 44 and replace it with a more controlled and limited power.
i. The test for authorisation should be where a senior police officer reasonably suspects that an act of terrorism will take place. An authorisation should only be made where the powers are considered “necessary”, (rather  than the current requirement of merely “expedient”) to prevent such an act.  
ii. The maximum period of an authorisation should be reduced from the current maximum of 28 days to 14 days. 
iii. It should be made clear in primary legislation that the authorisation may only last for as long as is necessary and may only cover a geographical area as wide as necessary to address the threat. The duration of the authorisation and the extent of the police force area that is covered by it must be  justified by the need to prevent a suspected act of terrorism. 
iv. The purposes for which the search may be conducted should be narrowed to looking for evidence that the individual is a terrorist or that the vehicle is being used for purposes of terrorism rather than for articles which may be used in connection with terrorism. 
v. The Secretary of State should  be able to narrow the geographical extent of the authorisation (as well being able to shorten the period or to cancel or refuse to confirm it as at present). 
vi. Robust statutory guidance on the use of the powers should be developed to circumscribe further the discretion available to the police and to provide further safeguards on the use of the power.   
Ok, this is more limited than the current system. But to be fair, roving gangs of men with guns wouldn't be much less limited. It's still labouring under the fundamental dillusion that this power existing at all is a good idea. Just to stress because it cant be said enough. It cannot be acceptable for any power to exist that is not used for its primary purpose and which does not have a valid and necessary second use. All the safeguards in the world wont change the fact that nobody has ever stopped an actual terrorist using these powers. You can have wonderful limitations and restrictions, but it wouldn't justify the power existing at all.

The actual limits here are not that strong. There are strong limits on what areas can be designated, but once that designation has been made the actual copper in the street has no limits on the abuses he can make of his powers. There are no changes to ensure this is only used on those who the officer has good evidence to suspect of an actual crime. There are no changes to ensure that people who are unfairly and unreasonably detained will be able to gain compensation. There are no real punishments here for officers (and there are many) who simply act beyond the law. Those officers who force people to delete photographs act beyond the law. The odds that any such officer would ever be punished for this are slim to none.

Specifically to this the report later recomends:

ii. Changes are made to guidance on  the use of powers which could be used inappropriately to prevent photography.

This is essentially devoid of content. Guidance already exists. It is already illegal to abuse these powers. It has already been extensively covered by endless advice and letters and everything else. It hasn't stopped the cops on the ground from acting illegally. There is no sanction whatever to restrain them. Only when one exists will people stop being abused in this way. A fail I'm afraid, could do better.


The Regulation of Investigatory Powers Act 2000 was a disaster. Giving local government vast powers means that you get a beautiful combination of huge powers with tiny ends. Hence ridiculous use of anti-terror surveillance in order to crack down on dog fouling and people claiming to live in a false catchment area. The central question here is proportionality and oversight.

The act gives specific power to bug homes, wiretap, follow people, bribe informants etc etc to important bodies:

Section 25 p 1
(a)a police force;
(b)the Serious Organised Crime Agency;
(c)the Scottish Crime and Drug Enforcement Agency;
(d)Her Majesty's Revenue and Customs;
(f)any of the intelligence services;

Just to list that more fully that means that power to bug homes is given to:

GCHQ, Secret Intelligence Service, Security Service, Ministry of Defence, armed forces, Her Majesty's Prison Service or Northern Ireland Prison Service.

The territorial police forces, the Ministry of Defence Police, the British Transport Police, the Royal Navy Regulating Branch, Royal Military Police, Royal Air Force Police and HM Revenue and Customs.

This is obviously a list far too long, and the limitation that such authorisation can only be given by the head of each authority is not much security. Pleasing is the ability of the Secretary of State to:

Section 25 p4
(a)remove any person from the list of persons who are for the time being relevant public authorities for the purposes of this Chapter;

Less pleasing is the reverse power.

Section 25 p 1
(g)any such public authority not falling within paragraphs (a) to (f) as may be specified for the purposes of this subsection by an order made by the Secretary of State

This gives the Secretary too much positive power to enable organisation to spy which cannot be trusted. These powers are not objectionable when given to the security services, if you haven't secured them properly with tight oversight to ensure they act for the public good you are doomed irrespective of this act. Something important however is the less trustworthy organisations. Especially the British Transport Police, who I personally wouldn't give the power to carry walkie talkies.

Of this aspect there is no change whatever proposed by the report. This is disappointing but not surprising, the police getting massive and largely unrestricted powers is rarely something that gets overturned and reversed. Even if there's no need for the power the police will use it to prove it is needed. But on to things we can actually expect any progress on.

The use by councils is disturbing only due to the extreme disproportion of power used. Local councils can use section 28:

1)Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the carrying out of directed surveillance.

(2)A person shall not grant an authorisation for the carrying out of directed surveillance unless he believes—

(a)that the authorisation is necessary on grounds falling within subsection (3); and

(b)that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out.

(3)An authorisation is necessary on grounds falling within this subsection if it is necessary—

(a)in the interests of national security;

(b)for the purpose of preventing or detecting crime or of preventing disorder;

(c)in the interests of the economic well-being of the United Kingdom;

(d)in the interests of public safety;

(e)for the purpose of protecting public health;

(f)for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or

(g)for any purpose (not falling within paragraphs (a) to (f)) which is specified for the purposes of this subsection by an order made by the Secretary of State.

With similar qualifications they can use "covert human intelligence sources" under section 29.

This is a very wide power, directed surveillance and covert intelligence is spying with quite a wide definition and powers.

The central question is one of proportionality. For people to be spied on by their government is always a harm. It can only be justified by a harm reduced by it. I.e. there needs to be a crime dealt with by the power that makes this clear harm worth it. I think however you weight your utility function you'd have trouble thinking that being spied on is a price worth paying for clearing up dog mess or making sure people are really in the school catchment zones they claim they are.

It's then a question, should these powers be used by groups such a councils and various small quangos or should they be exclusively the use of the police and intelligence services?

To me the police are the right people to investigate crimes. However, this is clearly a very simplistic thought. Local councils exist for a reason, they have valid domains where they can legislate and there should be some power to enforce local laws on fly-tipping and dog fouling or the like. So in principle some powers typically thought of as policing powers could be legitimately used by councils. The question then is one of proportionality. The kind of local crimes that councils are involved with are obviously minor ones. Universal and important crimes are matters of national laws, local councils only really have fly-tipping and dog fouling left.

So what levels and kinds of crime can legitimately be dealt with by spying measures?

Crimes with a maximum sentence of 6 months? Rather minor crimes such as drink driving, stealing eggs. To quote the report:

A threshold of 6 months would allow local authorities to continue using
the covert techniques in their investigations of offences under the Gambling
Act, against safety regulations, and some investigations into benefit fraud and
licensing offences.

1 year? This is the maximum sentence a magistrate can hand out. From the report:

A threshold of 1 year would exclude those allowed by the 6 months threshold but would allow use in some wider trading standards cases including the marketing of knives and would incorporate the most serious health and safety offences, product safety offences and more serious
benefit fraud offences.

3 years is a quite high threshold ("serious crimes" in the technical sense are 4 years). This is the same as the limit on the most serious use of RIPA powers for "interception and intrusive surveillance." So there would in effect be only one kind of use of RIPA powers, for quite serious crimes, and a lot of powers could immediately accessed at this point.

The report sets the limit here at 6 months. So even quite trivial crimes can be dealt with by these powers. And, worryingly, the government does not see this limit as binding.

But because of the importance of directed surveillance in corroborating investigations into underage sales of alcohol and tobacco, the Government should not seek to apply the threshold in these cases.

So in a case of selling alcohol, not considered by law to be a very serious crime at all and not subject to any prison sentence, the council's powers on this are clearly not proportionate to the importance of the crime. If there are special circumstances about how evidence must be procured in this case then special regulations should be made. To bend a limit at convenience for these cases damages the limits.

Other Bodies

Something important to note is the list of other bodies that can use at least some RIPA powers.

1.Any police force.
1A.The Civil Nuclear Constabulary.
2.The Serious Organised Crime Agency.
2A.The Scottish Crime and Drug Enforcement Agency
3.The National Crime Squad.
4.The Serious Fraud Office.
4A. Special constables of Dover Harbour
4B. Constables of Mersey Dock
5.Any of the intelligence services.
6.Any of Her Majesty’s Armed forces.
7.Her Majesty's Revenue and Customs.
8.The Commissioners of Inland Revenue.
9.The Department for Environment, Food and Rural Affairs.
9ZA.The Department for Business, Enterprise and Regulatory Reform.
9ZB.The Department for Business, Innovation and Skills.
9A.The Department for Communities and Local Government
10.The Ministry of Defence.
11.The Department for Transport. the Office of the Deputy Prime...
12.The Department of Health.
13.The Home Office.
13ZA.The Ministry of Justice
13A.The Northern Ireland Office.
14.The Department for Work and Pensions.
15.The Department of Trade and Industry.
The Welsh Assembly Government
16.The Welsh Assembly Government.
17. Local authorities
17A.Any fire authority.

Dont ask me while the Act skips from 17A to 24.

24.The Health and Safety Executive.
25.A Health Authority
26.A Special Health Authority
27.A National Heath Service trust
27A.Local Health Boards in Wales
27B.Her Majesty's Chief Inspector of Education
27C.The Information Commissioner.
27D.The Royal Parks Constabulary.
28.The Royal Pharmaceutical Society of Great Britain.

I personally dont think the Royal Parks Constabulary should be in the same list a MI5. There is no alteration whatever on this list. Indeed the report recommends that as use as possible is made of RIPA in order

to ensure that as far as possible RIPA is the only mechanism by which communications data can be acquired.

This is on the grounds that RIPA has the best safeguards. ... One would be stunned to discover this on reading the actual text however.

In summary, not much has been done on RIPA. There are restrictions on the kind of surveillance powers that get councils into the media, but not much on the far too lengthy list of other bodies with such powers. Does a lot to talk about safeguards ... but doesn't actually propose many. I'd call this one a fail.

Hate groups

This is a new proposal to extend anti-terror laws. At present the Home Secretary can ban any organisation:

“concerned in terrorism” – meaning that they commit, prepare for, encourage, promote or are otherwise involved in serious violence designed to intimidate the public or a section of the public for the purpose of advancing an ideological, religious or political cause

This makes membership of the organisation, and if required the wearing of its uniform, a criminal offence. As applied to terrorist groups this is a rather stupid provision. It indicates disapproval sure... but anyone actually interested in joining the IRA or Al-Queda or any other such organisation is not going to spend more than a second mulling over the fact that such organisations are banned. It wont stop anyone joining, and as these are criminal organisations anyway you're unlikely to find people advertising membership of them.

There are proposals considered here to extend this power to ban groups "which
espouse or incite hatred or other forms of violence".

This would be deeply foolish. Let us consider a typical such organisation, I wont use a real one, but lets pretend there is a group promoting hatred against Egyptians under the banner of "Egyptians Date Leppers". This group would not (officially at least) sanction violence (to do so would put it in the first category. So what we have in this EDL is a group of deeply unpleasant people who want to stir up racial tension. Some members will commit crimes no doubt, in fact being a member of EDL would be quite a good warning sign. The group itself will (in public at least) generally avoid anything that could be criminal.

Now ask the question, is it good to ban the EDL? Well to ban any organisation is first off illiberal, so there's a hurdle to get over before you even start, it must prevent a large enough harm that the illiberality is worth it. Does banning this organisation do that? Well certainly the ban would stop the members appearing together very publicly. This would doubtless prevent some disturbances and maybe even riots. It might hinder the group from getting semi-interested members. ... that's about it. Realistically what would happen is that a new organisation called say Bloody Nasty Pharaohs would be set up to replace EDL and so on for a glorious game of whack-a-mole. Also what would happen is that anything that EDL did would automatically have top news priority, "banned organisation posts video to internet" would really work as a story. It would also cause a huge fracturing and schisming of the EDL into unofficial small groups. This makes police work a lot harder. Tracking who is a member of one organisation with a website and enrolment forms is a lot easier than thousands of small breakaway groups.

However. I'm glad to say the report agrees.

It would be disproportionate and possibly ineffective to widen the definition of terrorism or lower the proscription threshold to try to include groups which incite hatred and violence. There would be unintended consequences for the basic principles of freedom of

What a brilliant decision to snatch from the jaws of a really illiberal idea. Well done. This is 100% a win. Discuss and propose an illiberal idea and then reject it. ... of course, that leaves us just where we are ... and there's no mention of the same thing for Terror groups being repealed, but that's too much to expect.

Deportation of foreign nationals engaged in terrorism

Allow me to be simplistic here. There are two classes of people accused of terrorism. Those who are in fact guilty of orchestrating or planning an act of terrorism, and those who are not. Allow me to carry on by asking if it's best for people in each category to be sent to another country?

Guilty: So a dangerous person is being sent to another country. We cannot as a rule trust the legal system of that country to detain them as long as they are a danger. So potentially we are storing up danger for ourselves.

Not guilty: we certainly cant guarantee that innocent people will be treated well in foreign countries and in general shouldn't send them there.

So in general I would suggest we send people aboard always at a risk to ourselves or to justice. What benefits are there of this? Well, there's cost. And there's the very valid idea that people should be able to return to their home country rather than staying under the control of a foreign state. ... I'm struggling to think of others, and frankly I'm not convinced by either. But, lets take as a given that we do need to deport these people. The question is who, to where and with what guarantees.

The proposal is:

i)Actively pursue deportation arrangements with more countries, prioritising those whose nationals have engaged in terrorist related activity here or are judged most likely to do so in future.
ii. Continue to pursue generic arrangements as a preference, but seek assurances for specific individuals, without a wider arrangement, if viable assurances can be obtained.
iii. Examine how to increase the number of expert witnesses the Government provides in court; consider commissioning an annual independent report on deportations under this policy; and explore
options for improving monitoring of individuals after their return.
iv. Engage actively with other countries, more international organisations, and more NGOs to increase understanding of, and support for, this policy in the context of our work to promote and
improve human rights around the world.

Totally unobjectionable. The rule of law and long standing arrangements are always preferable to ad hoc procedures for individuals. Diplomacy is the right way to do things always. We must ensure we work closely with experts to get the right results and widest consultation. Very good. No complaints, wait to see what happens on the ground though.

Control orders.

The big money issue. Control orders at the moment are being used on 8 people. They are a form of house arrest, people are banned from various kinds of meetings and technology and must stay in a designated house overnight, all dependent on the details of the individual order.

The sheer scope and range of these orders is incredible. The headline things that an order can require are given by the Terrorism Act 2005:

4)Those obligations may include, in particular—

(a)a prohibition or restriction on his possession or use of specified articles or substances;

(b)a prohibition or restriction on his use of specified services or specified facilities, or on his carrying on specified activities;

(c)a restriction in respect of his work or other occupation, or in respect of his business;

(d)a restriction on his association or communications with specified persons or with other persons generally;

(e)a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence;

(f)a prohibition on his being at specified places or within a specified area at specified times or on specified days;

(g)a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom;

(h)a requirement on him to comply with such other prohibitions or restrictions on his movements as may be imposed, for a period not exceeding 24 hours, by directions given to him in the specified manner, by a specified person and for the purpose of securing compliance with other obligations imposed by or under the order;

(i)a requirement on him to surrender his passport, or anything in his possession to which a prohibition or restriction imposed by the order relates, to a specified person for a period not exceeding the period for which the order remains in force;

(j)a requirement on him to give access to specified persons to his place of residence or to other premises to which he has power to grant access;

(k)a requirement on him to allow specified persons to search that place or any such premises for the purpose of ascertaining whether obligations imposed by or under the order have been, are being or are about to be contravened;

(l)a requirement on him to allow specified persons, either for that purpose or for the purpose of securing that the order is complied with, to remove anything found in that place or on any such premises and to subject it to tests or to retain it for a period not exceeding the period for which the order remains in force;

(m)a requirement on him to allow himself to be photographed;

(n)a requirement on him to co-operate with specified arrangements for enabling his movements, communications or other activities to be monitored by electronic or other means;

(o)a requirement on him to comply with a demand made in the specified manner to provide information to a specified person in accordance with the demand;

(p)a requirement on him to report to a specified person at specified times and places.

So that's imprisonment. There's almost no power left to such an individual. Very little autonomy is maintained whatever by such proceedings. If an innocent person (to use my admittedly simplistic dichotomy from above again) is on such an order then this is appalling. Especially bad is the provision specifically in the bill in so many words to impose orders contrary to the UK's international human rights obligations.

In this Act—

“derogating obligation” means an obligation on an individual which—
(a)is incompatible with his right to liberty under Article 5 of the Human Rights Convention; but
(b)is of a description of obligations which, for the purposes of the designation of a designated derogation, is set out in the designation order;

Such orders, being incompatible with human rights by definition much surely be banned? Nope.

4) Power of court to make derogating control orders

(1)On an application to the court by the Secretary of State for the making of a control order against an individual, it shall be the duty of the court—

(a)to hold an immediate preliminary hearing to determine whether to make a control order imposing obligations that are or include derogating obligations (called a “derogating control order”) against that individual; and

(b)if it does make such an order against that individual, to give directions for the holding of a full hearing to determine whether to confirm the order (with or without modifications).

(2)The preliminary hearing under subsection (1)(a) may be held—

(a)in the absence of the individual in question;

(b)without his having had notice of the application for the order; and

(c)without his having been given an opportunity (if he was aware of the application) of making any representations to the court;

but this subsection is not to be construed as limiting the matters about which rules of court may be made in relation to that hearing.

This is a mockery of a trial the security services having the ability to present, with no risk of contradiction from fair and honest scrutiny from the person being condemned, any concocted evidence they like. This is not me with my conspiracy theory hat on. This is me with my fair trial hat on. My fair trial hat, like my science hat, has one golden rule:

Anything presented as fact without a fair chance to contradict it is to be assumed false.

So on the basis of evidence I will assume to be false a court can cancel the human rights of a citizen of this country. The thing is that even if we dont assume this to be false information, the hurdle of evidence the court requires is not, as in a real trial "beyond reasonable doubt", is is "balance of probabilities". To inflict any kind of judicial punishment on someone whilst there's only a balance of probabilities in favour of them being guilty is unbelievably illiberal. There are 8 people on control orders, if we are to believe that there is a true balance of probabilities in favour of each being guilty we should say that on average more than 4 of them are guilty. ... More than 4 is not good enough. If abuses of fundamental rights are going to be perpetrated I need stronger reassurance than that less than 4 innocent people are being abused on average.

However, this is not much help even if the person on the order is guilty. For the simple reason that it seems to be quite easy to simply run away. 7 people have managed this between 06 and 07 according to the report and there's no reason whatever to think that others couldn't.

So the coalition's solution to this situation that's horrific if innocent people are on it and unsafe if criminals are on it? Well, they've slightly fudged the first half and made the second half worse. ... wonderful. As you may have heard new measures are being put in the place of Control Orders

The key features of these new measures will be as follows:
i. They will be imposed by the Home Secretary with prior permission from the High Court required except in urgent cases (where confirmation by the court within 7 days will be necessary). Before making the order the Home Secretary must have reasonable grounds to believe that the individual is or has been involved in terrorism-related activity and be satisfied that it is necessary to apply measures from the regime to protect the public from a risk of terrorism.

The legal change from "reasonable suspicion" to "reasonable belief" is one I know nothing about. But this is an improvement in process making control orders require judicial oversight.

ii. The measures applied will have a protective effect, whether through disruption or through facilitating investigation. The police will then be under a strengthened legal duty to ensure that the person’s conduct is kept under continual review with a view to bringing a prosecution and to inform the Home Secretary about the ongoing prospects for prosecution.

I'm important to stress that the aim of everything the legal system does should either be peaceful resolution of the problems of innocent people or a successful prosecution. This emphasis is good. In practice it may well be words on paper however.

iii. The High Court will undertake a mandatory full review of each case after the measures have been imposed, with a power to quash or revoke the measures.

Good, very important.

iv. They will be subject to a maximum time limit of 2 years. It would only be possible to impose a new set of measures on an individual after that time if there is new evidence that they have re-engaged in terrorism related activities.

Good, but you can always manufacture new evidence by investigating old evidence in more detail, especially if an unreliable method of investigating evidence is used.

v. They will allow for an overnight residence requirement with some additional flexibilities e.g. in relation to overnight stays outside the residence. The overnight stay would be verified by an electronic tag.

... so exactly the same as the old curfew then...

vi. They will allow only tightly defined exclusion from particular places and the prevention of travel overseas.

Thus making the protection of the public concept ... meaningless. ... well done.

vii. They will allow greater freedom of communication and association than the control order regime, placing only limited restrictions on communications, including use of the internet, and on the freedom to associate.

Thus making the protection of the public concept ... meaningless. ... well done.

viii. Those subject to these conditions will be free to work and study unless this could facilitate or increase the risk of involvement in terrorism related activity.

How exactly can one go to work or study in a way that doesn't increase the risk of your committing terrorism? I mean ... it's a strange concept that your work could contain so few things or people as to make it harder to commit terror there than in a house that's constantly searched by the police.

ix. These measures will be able to place only limited restrictions in certain defined circumstances on financial transactions overseas.

... meh.

x. These measures will be able to require an individual to report regularly to the police.

Just like currently.

xi. Breach of the conditions, without reasonable excuse, will be a criminal offence. The maximum penalty for breach will be 5 years’ imprisonment.

The fact that it needs to be a crime to defy anti-terror control measures is ... odd. But I suppose if this results in locking people up for actual real world crimes that's got to be a good thing.

xii. There will be no provision to impose conditions that would require derogation from the (ECHR) – in other words no provision for measures which would deprive a person of their right to liberty.

Excellent! This is very important and very good. Well done.

xiii. Some enhancements will be made to the operation of the special advocate regime pending fuller consideration in the forthcoming Green Paper on the use of sensitive material in judicial proceedings.

Wait and see.

Ok so ... this is disappointing. Some improvement, getting rid of the opportunity to abandon article 5 rights is important. But in practice T-Pims will be almost exactly the same as control orders. This is not a win. Slight improvement, but really massively could do better. Like by scrapping the things totally.


This is not good. Really not good. After some of the most illiberal laws this country has seen in peacetime a government with liberal pretensions are ... leaving most of them in place. This is not good. We will have to see what the Freedom Bill has in store for us. I'd say this is a loose. The new proposals are better, but not as much better as it should be. I'm disappointed.

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