This month the government will release from anti-terror controls six suspects who have been identified by the independent reviewer of anti-terrorism legislation, David Anderson QC, as being ‘at the highest end of seriousness, even by standards of international terrorism’.
Why would any government do such a shocking thing? Why would a government choose to put the public, whose duty it is to protect, at such needless increased risk? Why indeed would a government choose to put itself at such risk? Because if any of the suspects released by this legislation commits an act of terrorism it will surely mean the end of the government who gave them the freedom so to do.
The answer goes back to the period immediately before and after the last election. Both coalition parties took the view that Labour’s anti-terrorism laws had fundamentally diminished our national freedoms. This was despite the obvious fact that we enjoy freedom of religion, expression and association which makes us a home for protest movements in exile from all around the world, as well as our long tradition of being a new home for those fleeing persecution. We had not become an unfree country in 2010, but this is what the parties which formed our governing coalition thought.
Every democracy has to balance freedom for its citizens with the duty to protect. Freedom is not unlimited. I am not free to burgle your house or to harm you physically. These are sensible limitations on freedom necessary for society itself to be free. So it is with anti-terror laws. There needs to be a body of law that seeks to punish and prevent acts of mass murder in order for the rest of us to go about our daily lives. In the current context that means limiting the freedom of those who seek to kill us and who hate the pluralism that characterises our life. Such limitations do not destroy freedom. They protect it.
And so, every country has some anti-terror laws. When a crime has been committed and the suspect caught it is quite simple: a trial, a conviction (or not) and if so, a lengthy prison sentence. But there are a small number of suspects about whom it is not that easy. These are people who may be engaged in terrorism plotting or fundraising but about whom there is not enough evidence to bring them to trial. Governments cannot – or at least should not – ignore them. Yet they cannot (as the courts ruled in 2004) simply throw them in jail.
Of the suspects subject to TPIMs (the weakened control orders) the government has argued that one was part of ‘a viable plot to commit mass murder by bringing down transatlantic airlines by suicide bombing’. The courts found that another had attempted to go to Afghanistan nine months ago to engage in suicide operations. I could go on, but the point is that these are people who pose a serious risk, not people who the state has somehow picked on for no reason.
The coalition’s response to its dislike of Labour’s control orders was to relax the regime by making three changes. The first was to give such suspects increased access to mobile phones and the internet. The second was to remove the power of relocation which effectively meant allowing suspects to come to London where most of them want to be. In other words the government made a decision not only to put the public at risk but specifically to put our capital city at risk. And finally they decided on a sunset clause which meant that even the watered-down controls would be lifted after two years even if the assessment of the threat the person posed had not changed. It is this last change which is coming into effect this month for most of the suspects on TPIMs.
The government implicitly admitted the increased risk to which the public was being put by increasing the anti-surveillance budget at the time the first two changes were introduced. This compensates to a degree but surveillance is not watertight, as is proven by the fact that two of the 12 suspects subject to TPIMs have since absconded, one in a taxi and the other in a burka. The government often says suspects also absconded under control orders, but none did so after Labour introduced relocation powers in 2007.
There is no argument that this is a weaker regime. The question is: why? As the government has gradually realised the increased risk it was running it has tried to change the grounds for the decision. The home secretary is now fond of saying the regime was being whittled away by the courts. The changes were inevitable. It wasn’t really a choice. All down to those pesky judges. Or maybe the Human Rights Act. But this is nonsense, and cannot go unchallenged.
When she introduced the legislation she said repeatedly that she was ‘re-striking the balance between national security and civil liberties’ and seeking an ‘acceptable balance between the needs of security and those of civil liberties.’
Indeed the government’s own reviewer of anti-terrorism legislation said in very clear terms: ‘The replacement of control orders by TPIMs was a political decision. It was not prompted by any court judgement, either from the United Kingdom or from Strasbourg’.
Indeed he also said on relocation: ‘The possibility of relocation has now been removed. That step was not required by the courts … which had indeed shown themselves generally supportive of relocation as a deterrent.’
This is very important. The decision which the government took to ‘restrike the balance’ was a political one. Not one forced on it by the courts. An analysis that said the threat to freedom in the UK came from the laws the previous government had passed, rather than the murderous intent of aspirant suicide bombers, led directly to the government choosing to give greater freedom to anti terror suspects and increase the risk to the public. That policy comes to fruition this month with the lifting of controls on most of the remaining suspects.
All this is worrying enough but there is a further issue here and it was posed in the recent House of Commons debate by Hazel Blears MP who has spoken out very well on this issue in recent years. What if the embarrassment of escaped terror suspects and the political row over the weakening of the anti-terror regime meant the government was disinclined to use TPIMs in the future? In theory, people previously on control orders could be put on TPIMs. But doing so would increase the scrutiny over whether or not they then absconded, plus of course their controls would have to be lifted after two years under the government’s legislation, so keeping this whole argument going. At the very moment when some UK-based jihadists are being radicalised by the Syrian conflict (in which, it should be noted, Britain plays no role) our anti-terror regime has been weakened and the government has taken a stance against strict control of suspects. It is bad enough to increase the risk to the public in terms of the present threat, as has been done. It would be even worse for the government to conclude that this was all too difficult and, for political reasons, that the TPIMs regime, flawed as it is, could not be used for newly radicalised suspects.
On this issue the government has failed in its first duty which is to protect the public it serves. The wrong analysis led to the wrong policy. And we can only hope no one suffers as a result.
Pat McFadden is Labour MP for Wolverhampton South-east. He tweets @PatMcFaddenMP