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Restrict freedom to preserve liberty: cunning Home Office plan

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Analysis Who gets to switch your life off? On what grounds, and what can you do about it? And at what point does tagging, surveillance and curtailment of movement constitute deprivation of liberty? Prison definitely counts as deprivation, but what about the graduated scale of technological "prisons without bars" (David Blunkett's words) that UK Home Secretary Charles Clarke is currently building?

The issue is central to the Prevention of Terrorism Bill, which Clarke rammed through the House of Commons amid scenes of chaos* yesterday. Clarke is ostensibly pushing through emergency legislation in order to deal with the cases of the Belmarsh detainees, whose current incarceration has been ruled illegal by the Law Lords, but as we noted here the section of the Bill he proposes to use immediately covers 'ASBOs for terror' rather than detention.

Clarke is introducing measures which will allow him to impose a wide range of restriction on individuals, including movement, use of Internet and communications, without his producing evidence, with the legal process only being involved when the restrictions amount to "deprivation of liberty" as defined by the European Convention on Human Rights.

Which surely suggests that the point at which this deprivation occurs is kind of important, in the particular case of the Belmarsh detainees and in the wider context of the UK Home Office's medium term planning for technological controls. Clarke is at the moment insisting that the current measures will only be applied to a small number of 'special cases', but they could equally apply in a 'deprivation lite' form to larger numbers, which is precisely what Blunkett envisaged when he first outlined the mechanisms last year.

Technology has the capability to impose graduated restrictions on liberty, but this is an issue the Government is specifically avoiding confronting. In yesterday's Commons debate Clarke acknowledged that MPs had asked "why I have sought to differentiate between cases involving a deprivation of liberty and those that do not".

Instances where deprivation of liberty in the ECHR's terms would require the UK to derogate from, or opt out of, the relevant areas of the Convention, so in constructing a regime of control orders the Government has drawn a distinction between actions which would require this, and 'less severe' ones which would not. It views home detention as a derogation order, and Clarke accepts that a number of non-derogating orders put together could constitute deprivation under the ECHR, and would therefore require derogation. But although this could imply that liberty is on a sliding scale and eminently divisible, the Bill as it stands defines it as an 'either/or'. Clarke expanded as follows:

"I begin by acknowledging that all control orders will impose greater or lesser restrictions on individuals' activities and movements. They could interfere with convention [ECHR] rights such as the right to respect for private and family life — article 8 — freedom of expression — article 10 — and freedom of assembly and association — article 11. There is no doubt about that whatsoever. It is also clear that interference with those rights is permissible under the convention, provided that it is justified by a legitimate aim and is proportionate. It does not involve a derogation from the ECHR and it is not the same as a 'deprivation of liberty'. Restrictions on freedom of movement, freedom to choose residence and freedom to leave a country do not fall within the concept of 'deprivation of liberty' — not as set out by me, but as set out in the European convention to which this country has rightly signed up.

"What is necessary for deprivation of liberty to take place? It is about the extent to which a person's physical liberty is curtailed; it must be of a degree and intensity sufficient to justify a conclusion that liberty has been deprived and not merely restricted. I put it to all Members with all the powers at my command that this distinction between a restriction of liberty and a deprivation of liberty is a real and important one — it is not simply trivial in regard to these issues."

Clarke, who is here quoting from the briefing document distributed to MPs at the last minute prior to the debate, has a point here, but he's pulling back from addressing it adequately. He is accepting that restrictions on individuals could conceivably breach the ECHR on several grounds (very interesting ones, if you think about what would be restricted in order to limit, say, "freedom of expression") , but he is then switching to a narrow definition of "deprivation of liberty" and taking refuge in the document's distinction between "restriction" and "deprivation".

The Government's line can therefore be seen as being that "physical liberty" must be curtailed with "a degree and intensity sufficient to justify a conclusion that liberty has been deprived and not merely restricted." Your freedom of assembly and association, and your freedom of expression, can therefore be removed without your being deprived of your liberty. So that all right, honest...

Should the Bill go through without substantial amendment that will be the position until it is overthrown by legal challenge. This means that the Home Secretary will have sweeping, virtually uncontrolled power to impose restrictions on communications, association and movement provided they are deemed by him not to reach the "degree and intensity" that qualifies as deprivation.

The 'concession' that Clarke announced, but didn't quite unveil, yesterday in order to shore up support for the Bill isn't relevant here. Clarke conceded the point that derogating control orders should be imposed by a judge and not in the first instance by the Home Secretary, but he had already indicated that it would not initially be necessary for any derogating control orders (which in the view of the Home Office are those involving home detention) to be imposed. The Government's explanation here is that the security forces themselves do not feel that detention is currently needed, because they feel that the technology now available is sufficient for adequate control and monitoring to be carried out without detention.

The security forces may well discover they were wrong, but in the short term Clarke's conceded nothing. The important point he did not concede, and on which the Government came closest to losing during votes yesterday, was on allowing the non-derogating control orders, the ones he actually intends to deploy, to be imposed by judges. The intention here remains for the orders to be imposed by the Home Secretary, and although the Government insists that those subjected to such orders will have a legal right of appeal, the intention is to restrict the appeal grounds to whether or not the Home Secretary acted within his powers, i.e. it's simply legal supervision of the process, not the right to challenge it.

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