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Thursday, February 03, 2011 

Saying farewell to Lord Carlile.

With great power, so it goes, comes great responsibility. For those in government and the few outside it given the requisite security clearance to view raw intelligence material, responsibility could be interchanged with fear. Different ministers have responded in different ways to the intelligence that has crossed their desk: some have treated it as it has long meant to be, as an incomplete but informative picture of the threats and challenges that the world at large poses. One is reminded of Robin Cook, who saw the same intelligence during his time as foreign secretary as that which was later deemed by Tony Blair and others to show Iraq's "active, detailed and growing" weapons of mass destruction programme. His opinion, expressed during his resignation speech to the Commons (which incidentally seems ever more prophetic with each passing year), was that "Iraq probably has no weapons of mass destruction in the commonly understood sense of the term". He was wrong only in that it had no WMD whatsoever.

Others, seeing voluminous numbers of memorandum predicting doom constantly crossing their desk, begin to believe the absolute worst. Lord Carlile, the outgoing independent reviewer of terrorism legislation has now been viewing the best work of the security services for the past five years, far longer it should be noted than any of the previous four home secretaries have lasted in their jobs. Even he, in his final report on the control order regime, admits that "some have held the view that I have been 'co-opted' into support of any measures proposed by government", something he denies, using as evidence his opposition to the way section 44 of the Terrorism Act 2000 was utilised.

The problem is that as well as having repeatedly signed off control orders as necessary to protect the public from those few suspected of involvement in terrorism who can neither be prosecuted or deported, a conclusion he's fully entitled to come to, he's also become their chief defender, a role that a truly independent reviewer shouldn't really be playing. Add in how his nominal party, the Liberal Democrats has opposed the orders from the beginning, much to his apparent chagrin, and it's not wholly surprising to find that he occasionally strikes something resembling a bitter tone as he signs off. He regards the debate over the orders as so "poorly informed" that he advises that at least one or two members of the official opposition should be "developed vetted". As could be expected, this doesn't seem to be so much for the benefit of truly informed debate as it is to assure the security services the opposition truly understands just how beneficial and necessary control orders or their successor TPIMs are.

Carlile also bridles against those who "suggest that post-charge questioning and/or the admission of intercept evidence would increase measurably the prospects of successful prosecution of individuals currently subject to control orders". This is revealing in that it makes clear just how much of the evidence against those made the subject of the orders is pure intelligence, rather than material which could, given the right circumstances and the security services' acquiescence, be revealed in court. Even given Carlile's repeated assertions of how he believes that every control order made has been justified on the evidence available at the time, it doesn't inspire confidence that such restrictive measures are being justified and renewed on the back of what could be false, exaggerated or downright wrong material, material which can never be challenged in an open court of law. It's disturbing that of the eight currently under the orders, two of whom have now had their liberty restricted for over two years, there could conceivably be another Cerie Bullivant among them, hopefully one of the mistakes Carlile mentioned making in a recent Lords speech.

The remark in the report to make the most headlines is Carlile's view that our obligations under Article 3 of the European Convention on Human Rights have made the "UK a safe haven for some individuals whose determination is to damage the UK and its citizens, hardly a satisfactory situation save for the purist". Is it really only purists who find the potential for those convicted of no offence, as those made the subject of control orders rarely have been, to be sent back to their home nation to be tortured or mistreated unsatisfactory? It is after all worth remembering that we've already been complicit in the torture and illegal detention of our own residents and citizens, something Carlile doesn't in this instance seem to consider worth considering. His case is further undermined by the very facts presented in his own report (Annex 1, page 63): 6 of the 10 who have at some point been subject to a control order and subsequently served notice of intention to deport have been returned to their home nation. Not bad for a supposed safe haven, surely?

If that was intended as other than a parting shot, knowing as he must have that such an out of character comment could and would be picked up and used by those who couldn't care less if terrorist suspects are mistreated, then it only serves as a further example of how it was the right time for him to leave his position. Whether in five years' time David Anderson QC, Carlile's replacement, will be criticised for having "gone native" in a similar fashion remains to be seen.

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