“The Liberal Democrats exist to build and safeguard a fair, free and open society”. These are the first fourteen words of the Preamble to the Constitution of the Liberal Democrats. It was this statement that finally made me decide to join the Lib Dems nearly ten years ago, and has kept me campaigning, working and fighting for and on behalf of our party ever since.

The control order debate has been raging lately, within the party and in the press. I wanted to explain why I feel so strongly about the issue of control orders and why I set up the group Liberal Democrats against Control Orders.

The Counter Terrorism Review is now expected to be published some time before Christmas. It’s still not clear which side is winning the argument on control orders. For many members and supporters of the Liberal Democrats, this is a crucial test.

If we, as Liberal Democrats, are all signed up to those three ideas of our society – fair, free and open – how does the control order regime fit in?

Are control orders fair?

In a word, no. For a start, the subject of a control order never knows the detail of the allegations being made against them. This is inherently unfair and offends against the most basic ideas of natural justice. There is also no presumption of innocence. The lawyer appointed to represent the subject only comes on board once the order is already in place. The lawyer never knows the details either so can’t ask questions in open court, or properly advise their client. Another lawyer is appointed by the Special Immigration Appeals Commision (SIAC) to act on behalf of the subject once the hearing is held in private (without the control order subject being present), but that lawyer is not allowed to disclose the details of the allegations to the controlled person, and so can never find out their response. (For a lawyer’s perspective on the work of trying to act for the subject of a control order see Matthew Ryder’s article.)

Kafkaesque is one way of describing it.

Furthermore, the control order may impose restrictions on activities such as where you can live (in one case the subject was forced to move 150 miles away from his family), who you can talk to, where you can go, whether or not you can use a telephone, or a computer, or a camera, curfews of up to 16 hours per day, policed by an electronic tag. Clearly a control order can have devastating consequences for anyone made the subject of an order, and their partner, and their children, if they have any.

Are control orders free?

In terms of financial cost, no. The Joint Committee on Human Rights has calculated that between 2006-2009 around £13 million has been spent on the regime, including some legal costs, but not the costs of policing the orders.

The litigation costs have been high with cases attacking individual orders being appealed, successfully, to the Supreme Court with the associated time and expense this necessarily involves for both sides of the argument.

The human cost of control orders is extremely high. Subjects have reported how their lives have been ruined beyond repair, even after the control order had ceased in effect. This quote is from Cerie Bullivant whose experiences are related in Liberty’s response to the Counter Terrorism Review – From War to Law :

Friends turned against me and people were afraid…the control order grew more and more restrictive – it began with forced residence, no travelling and daily signing in at a police station and ended up with tagging, curfews, no studying and forced unemployment. It became impossible to live an ordinary life.

Finally, after two years, my life could begin again. Looking back, I see how naïve I was. There was no way my life would return to normal. I’ve had to move – I still get abused in the street, shouted and spat at. …I’ve always tried to live a good life but now I’m the lowest of the low – and I’ve never been charged, tried or convicted of any terror offences.

So, costly for the taxpayer, and for the control order subject. I believe costly too, for British society. Our reputation for being a nation in which the rule of law prevails is in tatters. The availability of house arrest is also expensive for relations between minority communities and the rest of the population. It’s costly for our sense of how society, our values, the traditional rights and freedoms which we have all taken as read, and perhaps taken for granted, for so long.

Are control orders open?

And again, that would be a no. There is no openness about the allegations forming the basis for the control order application, which are based on suspicion and intelligence, not evidence subject to examination and questioning in an open court. Hearings are held behind closed doors. The purpose of the orders is to keep apparently dangerous people off the streets without a trial in open court because of concerns that there is insufficient evidence for a criminal conviction. But this argument falls apart in the face of the fact that seven of the people made the subject of control orders have disappeared. We can assume that the people who stay put once the subject of the order are not the most dangerous.

The use of intercept evidence as an alternative means of achieving the utilisation of the court process is dismissed by the security personnel. The security services prefer the UK government to continue to use control orders, thereby undermining fundamental principles of our democracy. They prefer this course to considering ways in which intercept evidence can be introduced into court proceedings without endangering our security officers, and without giving away their methods of gathering information.

The control order debate is a different sort of test than the difficult and controversial decisions being taken about tuition fees, the benefits system and the CSR. The issue provides a different test for the coalition, and for the Liberal Democrats. It’s a test of what sort of a society it is that we want (to come back to those fourteen little words) to build and safeguard. It’s clear that there are many Conservatives who oppose control orders just as vociferously as the Liberal Democrats. This debate has nothing to do with money. It requires assessing a different sort of cost. What price fairness, openness and freedom? These are guiding principles which are too precious to jeopardise.

The cost of permitting a drift towards a society which countenances house arrest and a regime which is an affront to the rule of law is too high to pay any longer. The last government had a casual disregard for civil liberties which led to horrendous abuses and policies. We must not allow the same thinking to dominate this government as it did the last.

We must scrap control orders now.