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Whether they’re called “control orders lite”, “revised control orders”, “continuity control orders”, or whatever, almost everyone agree that the announcement today constitutes the continuation of control orders, not their abolition.

The objections to controls orders are well-known.  It is odious, and an offence against our national traditions, that Britons can be subjected to such restrictions on their liberty without being convicted or even openly accused of any crime.  And yet, Robin Simcox is quite right to remind us of why they exist.

We could not deport foreign nationals, known to have committed (even convicted of having committed) dangerous terrorist acts abroad to countries that might torture them.  (Robin isn’t correct to say that the only reason we couldn’t do that was because of the European Convention on Human Rights – deporting people to be tortured would have violated older British norms.)  Instead of deporting them, we offered them asylum.

Obviously, since they were extremely dangerous people (indeed, some of them might even have general antipathy to the West and if let loose might go on to plan terrorist acts in the UK), the form of asylum we offered them couldn’t be just allowing them into the general community, so instead their form of asylum was at Belmarsh Prison (though they were not prisoners, as such, because they were free to leave the prison if they left the country).

The Belmarsh arrangement was ruled to violate in particular Article 14 of the European Convention on Human Rights, because our laws applied a different standard to foreigners (they could be detained at Belmarsh when in Britain, without being charged with or convicted of any offence) from that applied to British nationals (who could not be held in prison without being charged with or convicted of an offence).  Since it was obviously impossible not to have the power to detain very dangerous foreigners, the government dealt with the issue of discrimination by introducing a system under which both Britons and foreigners could have their movements controlled without charge or convictions – control orders.  Of course, as was inevitable, once the government had the power to impose control orders on Britons it did so – and indeed all those subject to control orders today are Britons (but of course that doesn't mean we can abolish them, because otherwise we would have no means to control a dangerous foreigner if one arrived).

When in opposition, the Conservative Party said it would review control orders with a view to their removal.  But that was part of a package that involved repeal of the Human Rights Act and renegotiation of our position within the EU.  The only way we could remove control orders would be if we could move to a system whereby we could detain dangerous foreign nationals, known to have committed terrible crimes abroad, without also detaining British nationals.  The only way we could do that would be to repeal the Human Rights Act and either withdraw from or resile from certain aspects of the European Convention on Human Rights.  And the only way we could do either of those things would be if we renegotiated our position within the European Union, because the Lisbon Treaty forbids any EU member from resiling from any aspects it has previously accepted of the European Convention on Human Rights (you don’t have to accept everything to start with – many EU Member States don’t – but once you’ve accepted something you can’t go back).
And so, since the Coalition opposes any renegotiation of our position within the European Union, and hence cannot resile from any aspect of the European Convention on Human Rights, it was never going to be able to remove control orders.

I’m afraid it’s as simple as that.

7 comments for: Melanchthon: The Government couldn’t abolish control orders

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