Control orders are going to be in place until December 2011, retained in all but name by the government. This is the wrong decision. Letting 28 day detention lapse is a step in the right direction, even though it was done in lack-lustre way and not properly announced to parliament. Until Ed Balls asked an urgent question, the Home Office didn’t go to the House to let them know a key piece of legislation was going to slip quietly out of the back door. However, moving down to 14 day detention is not enough.
Terrorism Acts have consistently eroded the safeguards built into the Police and Criminal Evidence Act 1984. This was the first real piece of legislation giving powers to the police, and after the Royal Commission a test of “reasonable suspicion” was applied to the stop and search power. This was removed by Blair’s legislation.
Control orders, David Davis reminded us in The Times recently, were introduced as a result of a House of Lords case finding that foreign nationals were not being treated the same as British nationals under the Terrorism Act, which was contrary to Human Rights legislation. Despite this they have been used not on foreign nationals, but on British nationals. There are only eight people currently subject to them. Nearly half of people they have been used on have not been contained effectively by them. Eroding civil liberties does not work. Secret evidence does not work.
But there is a bigger point here. The Home Office are not paying due heed to the constitution. Not going to Parliament with important announcements is an all too common feature of modern governments, but that is no excuse; nor is making an announcement the day after legislation lapses. The former Director of Public Prosecutions, Lord Macdonald, was on the Today program this morning. “We saw some powers, some laws, enacted which did go too far," he said. The result, he thinks, is that our justice system has become an international "symbol of hypocrisy".
Unless the Home Office is going to return to the rule of law, collecting evidence that can be used in open court as part of a fair trial then whatever happens we have lost the fight against terrorism. News that instead of control orders we will have TPIMS (Terrorism Protections Investigation Mechanisms), which are control orders in all but name, shows that this government is not yet courageous enough to return to the rule of law. As Lord Macdonald said, “It has always been of critical importance that we don't, in trying to respond to these threats, give up the things that the terrorists would like to take from us. We want to protect our constitution, we need to protect our way of life.”