by Corinna Ferguson, legal officer at Liberty

It was surely not unreasonable to expect that the coalition government’s counter-terror review would put the final nail in the coffin of control orders. This flawed system for dealing with suspected terrorists has suffered numerous defeats in the courts, and both coalition partners had strongly criticised the regime in opposition.

Sadly, however, the long-awaited outcome is little more than a rebrand. Look behind the fluffy new name (TPIMs – terrorism prevention and investigation measures) and all the objections to the old system remain.

Control orders were hurriedly introduced in 2005 as a ‘temporary’ measure following the House of Lords ruling that detention of foreign nationals without charge in Belmarsh prison was unlawful. They allow for a wide range of restrictions to be imposed on individuals whom the home secretary suspects of involvement in terrorism. Taken together the restrictions can effectively amount to solitary confinement and house arrest. An individual order can be renewed indefinitely and several people have been subjected to a control order for years on end. A recent sinister feature of the regime has been ‘internal exile’, whereby the suspect is required not only to remain at home but to relocate – often hundreds of miles from their community, friends and family. All this is required of individuals who may never have been arrested, let alone charged or convicted of any offence.

The objections in terms of fairness and due process are obvious, but what about effectiveness as a means of preventing acts of terrorism? The fact is, no serious terrorist is going to be deterred by a curfew enforced via a plastic tag around his ankle, and indeed over 15% of those who have ever been subject to a control order have completely disappeared. If there is a genuine reason to suspect someone of involvement in terrorism they should be prosecuted and, if convicted, locked up. But far from complementing criminal due process, control orders work against it by tipping off suspects before it has been possible to obtain evidence which could be used in a criminal trial. Consequently, no one has ever moved from the control order regime to the criminal process; suspects simply languish indefinitely under punitive measures which ruin not only their lives, but often their families’ lives as well.

As Lord Macdonald pointed out in his report on the counter-terror review, it is this separation from the criminal justice system which is the real problem with control orders: ‘I have no doubt that were a regime of restrictions against terrorist suspects to be linked to a continuing criminal investigation into their activities, many of the constitutional objections to such a regime would fall away.’

After all, the restrictions on liberty are not objectionable per se. Many of them, such as the requirement to surrender one’s passport and to report regularly to a police station, are perfectly acceptable as conditions of police bail. Unfortunately, the government got so bogged down in seeking to lessen the effect of the restrictions that it lost sight of the process itself. The new proposed regime: does away with curfews in favour of ‘overnight residence requirements’ (in reality this is simply a reduction in the number of hours from 16 to 8); puts an end to internal exile (effectively precluded in any event by a recent Supreme Court ruling); relaxes the bans on association and the use of the internet and telephone; and there is suggestion of a two-year limit on the overall duration of an order (although the review suggests this period may be renewable). Crucially, however, orders will still be made by the home secretary on the basis of her belief, not pursuant to any actual or proposed criminal charge.

Far from nailing down the coffin, putting this proposal on the permanent statute book will ensure that punishment without trial remains alive and kicking. It is deeply disappointing from a government which claims to be united by a commitment to restore civil liberties.