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The ECHR doesn't just give prisoners the vote. It's also the elephant in the room on security.

By Paul Goodman

Screen shot 2010-11-02 at 08.14.26 This morning's most gripping story is David Cameron preparing to give prisoners the vote.  Yesterday's leading one was his fear that the Government's heading for a  "f*****g car crash" over control orders.  There's no connection between them at first glance.  But closer examination reveals them to be closely intertwied.  Let's start with control orders and consider the wider issues they raise.

As most of us know only too well, these orders - and the imprisonment without charge of suspects for up to 28 days - divide the centre-right of politics and (for what it's worth) journalism.  On the one side are ranged Theresa May, Lord Carlile, Matthew D'Ancona, Melanie Phillips and Robin Simcox.  On the other, David Davis, Ken Clarke and Dominic Grieve.  Chris Huhne and the Liberal Democrats stand with Davis & Co.  In the opportunistic middle are Ed Miliband & Co - willing to wound, waiting to strike in the Commons.  Ken MacDonald, the former Director of Public Prosecutions, is poised to denounce the continuation of the orders in any form.  This is the Prime Minister's car crash.

Let's work from first principles inwards, as it were, towards the practical politics.

National security and civil liberties can clash - and our national security must often prevail.  Some hold that civil liberties always come first, and that national security's dependent on them.  They'd presumably hold, for example, that nazi sympathisers shouldn't have been interned without trial during the Second World War under Defence Regulation 18B.  I disagree with this view.  Many of the 18B detentions were justified - an indication that national security must sometimes trump civil liberties.  Since there are degrees of danger to national security, there can be no hard-and-fast rules about circumstances.  But the principle should apply none the less.

However, there must be a strong presumption against compromising civil liberties.  The need to safeguard them should be self-evident. It follows that the case for control orders, and detention without charge for up to 28 days, must be decisive if either or both are to happen.  This position of judging each issue on its merits would seem to be uncontroversial.  But it meets a perhaps surprising degree of resistance from civil liberty and national security absolutists alike.  On the one hand, there's a tendency to maintain that because civil liberties are vital, it follows that 28 days imprisonment without charge is automatically unjustified.  However, the same argument could be cited against any term of imprisonment without charge, however minimal.  On the other, there's an inclination to claim that because there's a serious national security threat, it follows that 28 days imprisonment without charge is therefore justified.  However, the same argument could be made (and, indeed, was made by the last Labour Government) for 42 days and 90 days, or even longer.

On balance, the case for both 28 days imprisonment and control orders hasn't been made.  The 28 days controvery seems to me clear-cut.  The heart of the matter is that "information...indicates that those individuals who have been held over 14 days could have charged or released before the 14th day".  I don't always agree with Liberty (from whose briefing I've extracted the quote), but have reason to believe that it's right in this instance.  Control Orders is a more finely-balanced case.  Jonathan Evans, the Director-General of MI5, has helped persuade the Home Secretary that the solutions touted as alternatives to them - post-charge questioning, U.S-style plea bargaining and, in particular, the use of intercept evidence in court - aren't watertight, and that Control Orders must remain as a last resort.  However, his predecessor, Elizabeth Manningham-Buller, apparently took a different view. Furthermore, other countries with legal systems not very different from ours - the United States, Australia - have found ways of making intercept evidence available in court.  This is a difficult call, but we should try to follow in their footsteps.

However, imprisonment without trial shouldn't be ruled out in principle...but the way in which our courts interpret the European Convention on Human Rights would make such a move extremely difficult.  David Davis seemed to suggest yesterday that imprisonment for 28 days without charge, and control orders, were major factors in boosting recruitment to Al Qaeda.  It's true that both are unpopular with British Muslims, but this consideration, while important, shouldn't be treated by policy-makers as decisive.  Furthermore, there's no evidence that concern about civil liberties is an significant driver of terrorist recruitment.  Davis was on stronger ground when he noted that control orders aren't safe: seven of the 45 people placed under them have simply absconded, and another turned up at a meeting addressed by the current Attorney-General.  When it comes to public safety, control orders seem to be no substitute for the previous regime of detention under the terms of part four of the Anti-Terrorism, Crime and Security Act 2001 (although it should be noted that it applied to foreign nationals only).  This, of course, was struck down by the Law Lords on the ground of incompatibility with the European Convention on Human Rights, and the courts have been restricting control orders on similar grounds ever since.

So the ECHR turns out to be a double problem.  It not only gives prisoners the vote, but inhibits our national security - at least, as interpreted to date by the courts.  As I say, I'm on balance against control orders (and that they aren't safe provides a further, powerful reason for opposition).  However, "I can foresee circumstances" - as politicians say - in which imprisonment without trial would be necessary.  However, that the ECHR (arguably) and our courts reading of it to date (certainly) would make such a measure extremely difficult to effect.  For although derogation from the relevant sections of the ECHR is possible, this is only permitted under the condition of "war or other public emergency threatening the life of the nation".  And to date, our courts have refused to consider the Islamist security threat a public emergency. 

So the courts not only have the power to award murderers the vote - the Telegraph suggests that judges will decide which categories of prisoner are allowed to do so - but have the capacity to prevent terrorists from being locked up in the first place.  And all under the provisions of the ECHR.  The principle of judicial independence is indispensable to our democracy, and the Convention was a noble post-war attempt to replicate the freedoms which it guarantees across western Europe.   But politicians are accountable to voters while judges are not.  Most people are repulsed by the idea of the courts giving prisoners the vote or setting terrorists free to conspire simply because the ECHR gives them room to do so.  We got by until the 1950s without it, enjoying no less civil liberty (and arguably more) than we do today.  Why can't we do so again, especially in the event of a fully-fledged security crisis?


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