Saturday 23 October 2010

Will a control orders u-turn complete a triple whammy for the LibDem left?

James Forsyth of the Spectator rightly spots the non-barking dog significance of the loyalty of the LibDem left in not criticising the comprehensive spending review on fairness grounds, quoting a Simon Hughes press release endorsing necessary cuts as being "as fair as possible", which is striking given that on the social housing issue where Hughes sensibly chose to make a stand, he would appear to have been most comprehensively routed.

Forsyth notes that the LibDem leadership is confident it can secure sufficient Parliamentary support to reverse the party's totemic position on university tuition fees (for a moderately modified Browne review package), and has now navigated past the big moment of the spending review - and the perhaps somewhat unavoidable but surely undeniable fact that it is sharply regressive. (For constructive dissent, you need to look beyond Parliament to the Social Liberal Forum's politely assertive statement arguing the case for change from within, honestly acknowledging that the CSR is regressive and that the benefit changes can not easily be said to meet the tests set by the party conference).

And the LibDem liberal-left wing may now face a triple whammy in the next week or so, as another highly symbolic red line may well be crossed.

This is perhaps not ideal timing for the party leadership to be considering a u-turn on another totemic LibDem policy - the scrapping of control orders - which are an important symbol for many in the party of their commitment to civil liberties and human rights.

The LibDem manifesto pledged to "scrap control orders, which can use secret evidence to place people under house arrest" on the grounds that "We believe that the best way to combat terrorism is to prosecute terrorists, not give away hard-won British freedoms."

No date has been publicly given. But the government will shortly receive and publish the Office for Security and Counter Terrorism review on security and anti-terrorism policies. It is difficult to imagine that Nick Clegg does not already know what it will contain. There has already been informed press speculation that the review is set to recommend retaining control orders - in which case the key question will be whether Liberal Democrat ministers will support this. (The Conservatives also pledged to scrap control orders, but have never seemed particularly averse to retaining them).

The most obvious smoke signal that the Coalition are preparing to make the case for control orders is that the Coalition is believed to have already made two new applications for Control Orders since taking office in May.


It is very fair to say that Labour's record in power on these issues was often poor, too often giving too little weight and priority to civil liberties when dealing with some genuinely difficult dilemmas in forming counter-terrorism policies. (The LibDems argued this cogently, though if their ministers are now planning a u-turn may give them more sympathy for some of the trade-offs involved). That is acknowledged by Ed Miliband and new shadow Justice Secretary Sadiq Khan, though again this leaves open the issue of how to formulate the content of an effective and liberal new policy.

That case was made by an unusual suspect in an interesting, somewhat surprising piece by Tony McNulty, the ex-Home Office Minister who has a reputation as something of a New Labour 'hard hat' on these issues in Friday's Times (in a piece which would have generated rather more attention were it not for a combination of the CSR and the Times paywall).

The headline Labour got a lot wrong on terror, I admit gives the gist. (full piece (£))

I was Counter-Terrorism Minister in the previous Government. We got a lot right, but we made mistakes. Some policies simply did not protect the public; others failed to strike the right balance between public safety and liberty. An important part of Labour’s renewal in Opposition will be to get its counter-terrorism policy right.

First, Labour should reaffirm its commitment to the Human Rights Act; we will not defeat terrorism by reneging on this law. Upholding human rights may sometimes be terribly inconvenient in the fight against terrorists, but it is the price of democracy ...

Control orders have never been a satisfactory solution for detaining foreign nationals who cannot be deported. They were always a clumsy tool and successive legal judgments have further limited their scope. Although the coalition parties opposed them in Opposition, two control orders have almost certainly been imposed by them already since they gained power.

The current approach of using control orders for the most serious causes is no longer a sensible option. It means constant court challenges and the validity of orders being struck down by judges. The Government could use its derogation powers from Prevention of Terrorism Act 2005 and carry on using control orders in all cases; but that would represent an admission that this country could not protect its citizens without moving away from the European Convention on Human Rights. This would be a propaganda prize for our enemies.

The brave and responsible option — and a big departure from Labour’s position in power — would be to scrap them. This would require, however, real guarantees that the security services and the police have the resources and manpower to keep terror suspects under surveillance.

McNulty also says that, five years on from 2005, that 28 days detention without trial is too long. The government has renewed this for 6 months while conducting its review.

But the past two years in which no one has been detained for more than 14 days give us a new opportunity to rebalance civil liberties and public protection. It’s not soft on terrorism to revert to the 14-day limit for pre-charge detention.

So there would seem to be a pretty good chance of a reversion to 14 day detention powers proceeding by all-party consensus (though the government might propose a limited series of exemptions for 28 days). Shadow Justice Secretary Sadiq Khan personally made a careful and cogent case for Labour supporting the government on this, if they were to present evidence for 14 days being sufficient, at the Fabian fringe meeting on the Sunday of Labour conference, before taking up his current role after this month's shadow cabinet elections.

On control orders, it now seems possible that a Labour party seeking to reconnect with liberalism and liberties may now collide with the Liberal Democrats u-turning on the same road in the opposite direction, a manouvere made more difficult to execute given how vocal the Liberal Democrats have always been on this issue.

Here are two fairly characteristic Chris Huhne press releases, both still helpfully available from

Labour’s discredited control orders must be scrapped says Huhne
(Mon, 18 Jan 2010)

“It is an affront to British justice," said the Liberal Democrat Shadow Home Secretary.

Commenting on today’s High Court ruling that quashed control orders on two terror suspects and opened the way for them to claim compensation, Chris Huhne said:

“Today’s ruling must sound the death knell for Labour’s discredited control orders regime.

“It is an affront to British justice and the freedom people have fought and died for to place people under de facto house arrest without even telling them why.

“It now seems this fiasco is going to cost thousands of pounds of taxpayers’ money.

“Control orders should be scrapped before any more time and money is wasted.”

And a challenge to Tory hypocrisy in claiming to be against control orders but not voting to scrap them.

Tories challenged to end control orders hypocrisy says Huhne
Fri, 26 Feb 2010

Ahead of the debate in the House of Commons on the renewal of the use of control orders for another year, Liberal Democrat Shadow Home Secretary, Chris Huhne has written to the Conservatives to ask them if they will be voting against this renewal in the debate.

Chris Huhne said:

“We should not be the sort of country where ministers put people under house arrest without them even knowing the accusations against them. Control orders are pure Kafka and must end.

“Control orders are a constant reproach to Labour’s liberal credentials. The Conservatives have promised to vote with us against them but have repeatedly bottled out of doing so.

“Their line seems to be ‘Lord, make me liberal but not yet’.”

On control orders, a strong case remains that the Chris Huhne position (if perhaps too stridently absolutist in tone) was quite right in substance, and that this should be viewed as a core test of liberal principles, integrity and the values of British justice and democracy, and in October as well as in April. Moreover, the practical utility of control orders is also in doubt, a point on which Huhne and McNulty appeared to converge.

We can expect that case to be made very strongly by Liberty and other campaigning groups, should both the Tories and LibDems now both change their minds on this issue.

There is an arguable defence of a 'with regrets' position in favour of control orders as a last resort, on the grounds that holding responsibility for issues of security, terrorism and protecting citizens involves genuinely difficult issues in a small number of cases. That used to be Labour's position and the Conservatives are moving towards it.

However, that defence is not easily be open to anybody who has vocally challenged the integrity of anybody who took a different approach to the issue. It is more difficult to see how LibDems can credibly begin to make the case for nuance and complex trade-offs in an imperfect world without at least offering an acknowledgement of their own history of arguing the case solely as one of moral absolutes, to the extent of challenging any opposing view as authoritarian, self-serving and dishonest. (This point was made in a pro-LibDem piece by The Guardian's Julian Glover, in which he argued that criticism of the LibDems joining the government is far too vitriolic, rejecting the very idea that politics must involve compromise, yet noting that this mirroed "how the LibDems never presented themselves as deal-makers. Instead, they presented themselves as tellers of fantastical truths").

Perhaps - for Chris Huhne himself and other LibDems who have argued similarly - control orders will really prove a "red line" which can not be traded off or crossed.

Anybody who sincerely thought what he said was true would have to genuinely call 'No Pasaran' on this one. And perhaps he and his colleagues will. Let's wait and see.

If not, that may well be a further - and perhaps final - proof of the Forsyth thesis that the coalition looks set to remain remarkably robust, whatever cherished policies the LibDems have to ditch to remain within it.

Tuition fees are going, the parties are together on the Osborne economic strategy, nuclear power is (reluctantly) accepted in the coalition agreement, and the party pre-prepared on the ground that losing the AV referendum would not be cause to sulk off and take their ball home.

If control orders in the field of civil liberties are not a red line for the LibDem leadership or their backbench MPs either, the it would seem extremely likely that the Coalition can reach the end of a five-year term without ever finding one.

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