Even if the Government accedes to some of the Liberal Democrat and Conservative Opposition demands, and introduces an amendment to the Prevention of Terrorism Bill on Monday, which has a Judge rubber stamping a Control Order insead of just the Home Secretary doing so, this will still be an evil piece of legislation.
Judging from some of the Amendments which have been tabled, the Conservatives seem to be probing to see if the people subjected to "non-derogating" Control Orders i.e. not "house arrest" can be forced (under threat of 5 years in prison for not complying with the Control Order) to give up "information" to, presumably foreign intelligence agency personnel, or to be sent abroad for questioning/torture ("extraordinary rendition" in US political euphemism jargon)
"'(3A) A control order may not require the controlled person to leave the United Kingdom.'."
'(3A) A control order may not require the controlled person to talk to any specified person or any other person who is not a British citizen or is in the employment of or under contract to any foreign government.'.
'(3A) A control order may not require the controlled person to submit to torture or to inhuman or degrading treatment.'."
We are still dismayed, but not actually surprised, given the amount of Home Office legislation we have read, that the weasel word "any" has crept in to the clauses dealing with the actual serving of a Control Order.
For all those Englishmen at Home in their Castles, this might come as a bit of a shock:
"5 Modification, notification and proof of orders etc.
6) For the purpose of delivering a notice under subsection (5) to the controlled person a constable or a person authorised for the purpose by the Secretary of State may (if necessary by force)—
(a) enter any premises where he has reasonable grounds for believing that person to be; and
(b) search those premises for him."
That means that the police or some other as yet undefined secret policeman or a private sector bailiff, can enter by force, any premises in the UK and make a search without a warrant signed by a Magistrate or Judge or even the Home Secretary. What constitutes "reasonable suspicion" in such cases ? Rumour, hearsay and the flimsiest of evidence very often.
There are no restrictions on arranging a reasonable time, contacting the actual keyholder or landlord of a premises (it is unlikley that many of the Belmarsh detainees, for instance, will be substantial property owners themselves), or any legal duty to repair the damage or to compensate for lost business as a result of such a forced entry and search.
This is enforced by:
(3) A person is guilty of an offence if he intentionally obstructs the exercise by any person of a power conferred by section 5 6)."
which leads to penalties of:
"(7) A person guilty of an offence under subsection (3) shall be liable— (a) on summary conviction in England and Wales, to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 5 on the standard scale, or to both; (b) on summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding level 5 on the standard scale, or to both."
This applies not just to the person on whom a Control Order is being served, but to any friends , family , members of the public etc. who are deemed to be "obstructing". Who determines this and how ?
We still cannot find any mention in the Bill or in any of the tabled amendments, anything about Criminal Records, and Criminal Records Bureau Enhanced Disclosures regarding people who have complied with Control Orders and who have therefore never been convicted of anything by a court of law. What are the rules for purging the record of the fact that they have been subjected to a Control Order ? Or does the black mark stay on your secret police zapiska for the rest of your life, even if the Control Order has been quashed by a Court ?
What gets revealed to a potential employer during a Criminal Records Bureau Enhanced Disclosure check ?
The Home Office really have not thought through all the implications of this rushed legislation. It is clear from the list of Amendments that this point has escaped the scrutiny of Members of Parliament as well.
Another point which the Home Office has not thought through is what if Control Orders are served on Children ? Can they be hunted down and served with a Control Order without a responsible adult or legal advisor present ?
The so called "non-derogating" Control Orders in Clause 1 Section 3 are far too loosely worded, duplicate existing anti-terrorism legislation and in some cases are just nonsense:
"3) The obligations that may be imposed by a control order on the controlled person include, in particular— (a) a prohibition or restriction on his possession or use of specified articles or substances;"
What "substances" or "articles" can possibly exist, which are not already covered by exisiting anti terrorism legislation ?
The draconian Terrorism Act 2000 section 57 Possession for terrroist purposes already covers this. The Anti-terrorism Crime and Security Act 2001 also covers various chemical, nuclear and biological materials or articles, even if they do not actually exist and are just hoaxes.
If a person does have a dangerous item in their posession, then surely that constitutes enough evidence which can be presented in a proper court prosecution, obviating the need for a Control Order ?
"(b) a prohibition or restriction on his use of specified services or specified facilities, or on his carrying on specified activities;"
What does this "catch all" wording actually mean ? Which services or facilities ? The legislation does not even provide for a list of banned services to be published or amended.
What exacttly is to be banned ? Legal services ? Medical services ?
The Telecommunications and Internet service provider industries are well used to "cooperating" with the police etc. but many other service industries are simply not set up to repond in the same way.
What is the red tape bureaucratic burden and cost that this Bill will impose on innocent third party service providers ?
Where is the Regulatory Impact Assessment for this "Prevention of Terrorism Bill" ?
"(c) a restriction in respect of his work or other occupation, or in respect of his business;"
How is your work or business a terrorist threat ?
What is the red tape bureaucratic burden and cost that this Bill will impose on innocent third party businesses and employers ?
Again , where is the Regulatory Impact Assessment for this Bill ?
We know from the experiences of the telecomms industry with the Regulation of Investigatory Powers Act just how much a of burden poorly worded requests for data from multiple police forces and other investigators , ignorant of the technical complexity and financial implications of their requests, can be.
We suggest that businesses or service providers must charge the Government the full economic cost of developing new management and computer systems as well as getting financial compensation
"(d) a restriction on his association or communications with specified persons or with other persons generally;"
"Other persons generally" - since when is being held incommunicado without evidence or a fair trial not a breach of the European Convention on Human Rights ?
Does the use of the phrase "specified persons" in this clause, have the same meaning as used elsewhere in this Bill, i.e. "police constables or other specified persons" ?
Does it mean that the Control Order can only be applied to prevent communications with the police and/or the private sector bailiffs, electronic tagging company employees etc ?
Or does it really mean a blacklist of other individuals ? Will such a blacklist constitute, in some cases, "guilt by association" or libeli ? How would you like to appear on a list which is meant to restrict someone designated as a "terrorist suspect" by the Government ?
What about the Right to Free Association enjoyed by those "specified persons", who, unless they are are also subject to Control Orders will be having thei rights infringed ?
This Bill should specify exactly who the Government means by "specified persons", and the means through which they can be held accountable for any abuses of power. This is clear enough if these people are Police Consables, but it is unnacceptable to leave the wording so vague. A future Government might "specify" their own party supporters or militias, Brown Shirts, Black Shirts, ZANU-PF "veterans", local vigilante groups etc.
If the Government intends that these Control Orders should be enforced by say, the Probation Service, then that is what they should expliocitly put on the face of the Bill.
"(e) a restriction in respect of his place of residence or on the persons to whom he gives access to his place of residence;"
This could also be acollective punishment of a family or community, not just of an individual subjected to a Control Order.
That is likely to be a breach of ECHR Article 8 – Right to respect for private and family life.
The Conservatives have tabled a couple of Amendments which seek to prevent the Government from forbidding contact with family members or legal advisors.
Will this clause also be used to prevent "controlled" people from talking to the Press amd Media ?
Just as with any restrictions on electronic communications, it is counterproductive from an intelligence gathering viewpoint to restrict the freedom of association or communication of terrorist suspects in this way - you actually want them to lead you to other members of any terrorist plot.
"(f) a prohibition on his being at specified places or within a specified area at specified times or on specified days;"
Will this be used to limit freedom of religion by banning attendance at a Mosque or Church etc. ?
If the Government thinks that "electronic tagging" can be used to enforce "no go zones" against determined an highly motivated individuals they are just dreaming."(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;"
This is even more restrictive than the conditions imposed on the Belmarsh detainees, who were/are free to leave the United Kingdom, if they can find a country which will accept them after the UK Government has branded them as terrorist suspects.
This must fall foul of European Union law about the "free movement of people" within the European Union and the United Nations Declaration of Human Rights, remeber that someone who is subject to a Control Order has not been convicted of a crime.
What is to prevent this power from being used to enforce Internal Exile or to set up a Concentration Camp ?
"(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; "
The petty bureaucrats seem to have missed a trick here. This wording limits this extra period of detention to only 24 hours per Control Order.
Why does the Government claim that this is a "non-derogating" Control Order ? Restricting someone's movements for 24 hours is the same as house arrest or any other detention without trial - Article 5 still applies.
"(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;"
His British Passport or any Passport ? Again, what prohibited or restricted articles can there possibly be, which are not already covered by existing anti-terrorism legislation ?
If there are any grounds whatsover for suspecting the possession of explosives, firearms, forged documents etc. etc. and they are found, then surely that is enough evidence to prosecute under existing laws, and not muck around with Control Orders ?"(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;"
These three sub-clauses only apply to the "controlled person'" residence or where they are the keyholder and have the right to grant access.
What if the terrorist suspects do all their plotting and schemeing and contacting their friends at someone else's premises, or in a public place ? Surely the authorities have no right to confiscate other people's property, where those people are not themselves subjects of a Control Order ?
"(m) 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;"
That is likely to be a breach of ECHR Article 8 – Right to respect for private and family life.
"(n) 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;"
What information exactly ? Is this another attempt to force people to incriminate themselves or others under the threat of 5 years in jail for not answering an arbitrary question ?
"(o) a requirement on him to report to a specified person at specified times and places."
Who are these "specified persons" ? What legal sanctions are available against them to prevent them from abusing their power ?