The initial proposal for ‘control orders’ was introduced by the Labour government in 2005 via the Prevention of Terrorism Bill and was seen at the time as a preventative measure against an increased threat of international terrorism in the United Kingdom. Following the September 11th attacks in the United States in 2001, the subsequent invasions of both Afghanistan, also in 2001, and Iraq in 2003, was understood to have greatly increased the danger of an attack by extreme Islamist groups on UK soil (Marsden, 2010; Great Britain Bill, 2005).
Control orders seek to restrict the actions of suspects involved in “terrorism-related activity” as defined by the Terrorism Act 2000; they apply to both British and international persons, whom cannot be prosecuted or deported (Great Britain, 2000, Great Britain R.P., 2005). The orders seek to curb the activities of suspects whilst not incarcerating them. An initial research paper stated:
“This Bill allows the Secretary of State to make ‘control orders’ to restrict the movements or behaviour of suspected terrorists who cannot be prosecuted or deported, or impose obligations on them. The orders would be subject to some judicial oversight. Orders which amounted to an infringement of liberty would require a derogation from the European Convention on Human Rights to be in force.”
(Great Britain R.P., p1, 2005)
The means by which the Home Secretary can “restrict the movements or behaviour of suspected terrorists” are explicitly detailed in the Bill and it’s research papers, and have also been summarised by the BBC:
The Bill Says: | The BBC Says: |
Prohibitions or restrictions on the possession of specified articles, use of specified services or facilities, or carrying on specified activities | E.g. No internet |
Controls on whom he may associate with | E.g. Restrictions on visitors, Attend only one mosque |
Restrictions or prohibitions on movement | E.g. Curfews |
Controls on an individual’s place of residence or place of work | E.g. Live at one address |
Other restrictions on their ability to travel including surrender of passports; | E.g. No passport |
Duty to allow searches and comply with monitoring and reporting requirements including electronic tagging; Duty to supply information | E.g. Electronic tagging, Daily reporting to the police, Daily monitoring by phone |
(Great Britain R.P., p24, 2005; Great Britain Bill, 2005; Casciani, 2011)
The orders take two different forms, both of which if breached result in a criminal offence. A “non- derogation order” lasts for one year, implementing several of the lesser restrictions such as curfews and bans on whom the suspect may be in contact with. This form of control order does not implicate Britain’s relationship with the European Union as it is not in breach of the European Convention on Human Rights (ECHR). A “derogation order” would “infringe the right to liberty” by means of such restrictions as house arrest, and as such would call into question this relationship as it would involve opting out of Article 5 ECHR (Hanman, 2009; Great Britain R.P., 2005; Great Britain Bill, 2005).
Significantly, suspects accused of “terrorism-related activity” and subsequently issued with a control order are not to be informed of allegations against them, in order to maintain privacy of sensitive information, otherwise known as “secret evidence”. They are allowed to be represented by a lawyer, known as their “special advocate”, whom has access to the evidence along with the judge, but from which point on their contact with the accused is limited to monitored written correspondence, so as to maintain secrecy (Wagner, 2011).
The Home Secretary at the time of the bill’s introduction, Charles Clarke, issued a statement spelling out the government’s objectives for control orders as to protect the public from the threat of terrorism. He stated that “orders would be preventive and designed to disrupt those seeking to carry out attacks—whether here or elsewhere—or who are planning or otherwise supporting such activities” (Great Britain R.P.,p15, 2005). Prime Minister, Tony Blair reiterated the importance of the policy and public safety when his spokesperson said “The government has not put forward its proposals lightly” (BBC, 2005).
The policy was met with initial criticism from human rights organisations and opposition parties who suggested the government had hidden objectives of replacing previous laws, which had been illegalised, with legislation which could also be interpreted as illegal. Liberty, the civil liberties and human rights organisation commented robustly against control orders, stating: “Eight hundred years of the right to a fair trial in this country could be overturned within fourteen days” (Great Britain R.P., p19,2005). Similarly, Michael Howard, leader of the Conservative party refuted the notion; a Tory press release called for a suspects innocence or guilt to be decided by the courts, continuing “ If they are found guilty, they must be detained in a prison cell, not their living rooms” (Great Britain R.P.,p17, 2005).
The history surrounding the introduction of the control order policy to the agenda by the government in 2005 is complex. Following the September 11th attacks, new counter-terrorism legislation was introduced in Britain under a strategy known as CONTEST (Simcox,p18, 2010). The Anti-Terrorism Crime and Security Act 2001 was passed in November 2001 as emergency legislation and detailed, in Part 4, that a foreign national suspected of “terrorism related activity” could be imprisoned indefinitely without charge or trial if they could not be deported. However, three years later in December 2004, the House of Lords made a declaration of incompatibility as they believed the law to breach the ‘right to liberty’ under the ECHR. The Law Lords proposed that the law was not “strictly necessary”, as must be the case for an EU nation to opt out of any clause of the Human Rights Act. They believed this was demonstrated by the fact that it applied only to foreign nationals. This lead the government to repeal Part 4 of the Act, and propose a replacement policy: control orders (Liberty, 2005; Great Britain, 2001).
The first outline of the policy to the House of Commons, media, and the overall agenda was one of considerable speed; The Prevention of Terrorism Bill was announced in a Business Statement on Monday 21 February 2005, listing it for debate only two days later, Wednesday 23 February, and final Committee stages on Monday 28 February. The rushed nature of the policy produced much distain from opponents.
We understand that control orders reached the public agenda as the result of another policy; indefinite detention, being repealed as a result of the United Kingdom’s relationship with the European Union. This direct impact on policy formulation exemplifies a strong influence by the EU on what policies reach the agenda, and what can actually be implemented.
Other influences aside from those involved in the formulation of the policy, have clearly influenced it’s evolution; Labour’s manifesto promise in 1997 of being “tough on crime, tough on the causes of crime” meant that not only were the Labour government looking to reduce crime levels, but to halt the formulation of criminal activity (Labour, 1997). Conjoined with the increased threat from terror following September 11th, and the invasions of Afghanistan and Iraq, the government looked to maintain this strong ideological stance on criminality (Labour, 1997; BBC, 2010; Marsden, 2010). In 2004, Prime Minister Tony Blair described the role of Britain as to “try to find a way through this: to construct a consensus behind a broad agenda of justice and security and means of enforcing it” (BBC, 2004).
We can see that many aspects have influenced the evolution of the control order policy reaching the agenda: international crises, failure of legislation and European sovereignty have proved most prominent. These series of events relate to what Anderson believes explains the appearance of any policy on the agenda; suggesting that crises or spectacular events, such as the Iraq war, draw wide attention to a policy area, and become of particular importance when a group, in this instance the British public, are threatened. He also believes that when the Executive, that is the leadership of the government, becomes concerned with a policy area it is inevitable that it will reach the agenda in some form or another (Anderson, 1984).
In this sense, Anderson’s model of a number of factors coming together corresponds with Lindblom’s suggestion that the policy process is one of gradual change and growth; the “science of muddling through” (Hudson & Lowe, p7, 2009; Lindblom, 1979). This incremental approach towards the policy process rather than one of rational decision making, as suggested by Lasswell, is less idealistic and aims to develop policy in a reactionary fashion, as is the case with control orders (Hudson & Lowe, 2009). As such Linblom’s model correlates with the New Labour government’s overarching ideology of Realpolitik, addressing issues with a realist perspective guided by Gidden’s ‘Third Way’ (Heywood, 2007).
However, a more structured view of the issues which arise in the evolution of any policy is detailed by Kingdon who believes that amongst the “muddle” described by Linblom and the contributing factors mentioned by Anderson, there must always be three prominent factors. The ‘multiple stream model’ proposed that in order for a policy to reach the agenda, three ‘streams’ must prevail; the problem stream, policy stream and political stream. The problem stream produces the issues that need resolving; the policy stream produces answers to such issues; and finally the political stream produces the correct circumstances for new policy change. In the instance of control order policy, this would be viewed as follows:
Problem Stream - Repealment of Part 4, Anti-Terrorism Act 2001.
Policy Stream- Proposal to replace indfefinite detention with 'control orders'.
Political Stream- A desire to protect the public from terror suspects, and maintain a tough ideological stance on crime.
The ‘political stream’ of any policy can be linked to what Hudson and Lowe describe as “ideological paradigms” i.e. the political circumstances must suit the government’s ideology for the policy to reach the agenda. A strong stance on crime and anti-terrorism were clearly part of the Labour government’s ideological paradigm at the time.
Finally, it is worth noting that political power, leadership and decision making have clearly influenced the evolution of the control orders policy. Weber’s description of a strong charismatic leadership have been demonstrated by both the Prime Minister Tony Blair and Home Secretary Charles Clarke (Hudson & Lowe, 2009). Their actions also correlate with Houghton’s description of how political leaders make “big decisions during times of crises” in accordance with historical and personal events (Hudson & Lowe, p231, 2009). In this instance the initial introduction of indefinite detention, which they did not wish to be repealed, lead them to introduce what they believed was the best alternative. Outside influence on the policy’s formulation has been limited, demonstrating centralised decision making which has clearly been influenced by a strong government standing in parliament. The Labour government held a majority of 66 in 2005, resulting in the ability to table unpopular policies, such as control orders, and still believe in their ability to press them through.
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