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.

The targets

Clarke insists that the new law will only be applied to relatively small numbers of people, but its primary purpose, the imposition of restrictive measures on individuals against whom insufficient evidence can be produced, means that its potential catchment area is very wide. Clarke need only be convinced by the security services that there is a greater than evens chance that an individual has in some way provided support for terrorists or a terrorist organisation for him to be able to impose a control order. Which means that many 'might be terrorists' could be subject to the law, and we only have Clarke's word to say he will confine it to small numbers.

In an interview yesterday Tony Blair said that "several hundred" people in the UK were known to be plotting terrorist attacks, which would suggest according to Blair's interpretation that several hundred people would either be prosecuted, if there's sufficient evidence, or subjected to control orders if there is not.

Blair's intervention was not entirely helpful to Clarke's case in the Commons yesterday, and he attempted to downplay it: "The Prime Minister was referring to the 700 cases, I think, where action has been taken which has already been reported. There are a large number of people who, we think, pose a threat to what we believe. However, a significant number of those can be dealt with through the prosecution route, which is the route that we prefer to follow."

On closer examination, however, this doesn't really defuse the situation, because Clarke and Blair turn out both to be singing from the same hymn sheet. The "700" Clarke refers to is the total of number of arrests made under the Terrorism Act 2000 from 11th September 2001 to 31st December 2004 (701, actually). The Home Office's breakdown of this number shows that half of these were released without charge, 119 were charged under the Act and 135 charged under other legislation. Only 17 of those charged were convicted under the Act in the period, however, and some of the others have already been acquitted, so it's by no means inevitable that the 17 will increase substantially.

Out of that 700 we can therefore assume the existence of several hundred who were either released or will eventually be acquitted under the Act. A spokesman for Blair explained that the Prime Minister's "several hundred" had not referred to several hundred home detentions and that Blair "made clear that with regards to the extreme end of the control orders [i.e. the derogating ones], we envisaged that it would only be used against a very few people." As regards the rest, the spokesman said that "the whole point about the control orders was that they were a more sophisticated range of powers than were available at the moment. Therefore, people would have the power to vary the restriction according to the individual, and according to the threat level that the intelligence services believed the individual posed."

The differentiation between the "extreme end" control orders and the "more sophisticated range of powers" strongly suggests that the latter will be used on a rather wider scale. Those of Clarke's "large number of people who... pose a threat" but who cannot be "dealt with through the prosecution route" (remember, 17 so far) would seem likely candidates.

Is the number larger than the number of Terrorism Act arrests might suggest? That's currently difficult to say, because on the one hand the security services might have large numbers of people they suspect, but don't have enough evidence to move against, while on the other it might be the case that some of the people charged in the past would instead be subject to control orders under the new law.

One thing we can say about numbers with a reasonable degree of certainty is that in the near future the imposition of control orders on hundreds of people is unlikely, because Clarke has been forced to understate the Bill's nature in order to get it through Parliament. Consider the possibility that what we have here is a ghastly blunder which has actually set back the Home Office's plans for the use of "prisons without bars" in the cause of national security.

On David Blunkett's departure last year Charles Clarke was presented with his legacy, the Law Lords' Belmarsh judgement being one of the most immediate aspects of this. Clarke's Home Office scrabbled around well into January to produce a fix for the Belmarsh judgement, and settled on the deployment of 'something we prepared earlier' in the shape of the control orders originally intended by Blunkett to deal largely with fellow travellers on the peripheries of terrorism.

This must have initially seemed a good wheeze to them, because it allowed the Belmarsh detainees to be freed without being, exactly, freed. But with hindsight it must be clear that in mixing the two issues together Clarke has made it very difficult for himself to deploy 'deprivation lite' on a widespread basis. At least until the next major terror scare provides an excuse. The longer term intent to use technological controls to police the UK, and to short tiresome legal obstructions out of the equation, however, remains. ®

* We shouldn't allow yesterday's democratic low point to pass unremarked. Clarke's intention to amend the Bill became known as the Commons debate on it was beginning, and his intended amendments effectively made Commons discussion of the first section of the Bill redundant. Clarke's amendments however had not at that point been written, and he proposed to put them to the House of Lords once the Bill had moved there (which it did today). The Commons was therefore asked to vote not for the Bill they had in front of them, but for the one sketched out by Clarke that was to be presented to the Lords, but which did not yet exist. The Commons was therefore asked to vote for a promise - it did.

Late news

"UK Muslims should accept that people of Islamic appearance are more likely to be stopped and searched by police, a Home Office minister has said. Hazel Blears..." Oops...

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