Human rights, terrorism and control orders

Peter KellnerPresident
May 16, 2011, 4:50 AM GMT+0

Like our politicians, the public has been considering the vexed issue of control orders. When should civil liberties be curtailed for the sake of national security? Is there in fact a trade-off between the two? When, if ever, should someone’s freedom be curtailed without charging them or bringing them within the criminal justice system? These questions matter at least as much as whether Nick Clegg and David Cameron keep their election promises to end control orders and find some way of keeping everybody happy, from Liberal Democrat activists to Conservative right-wingers.

In the past few days YouGov has tested these issues for the Sunday Times and, separately, the human rights group, Liberty. First we repeated our standard questions for the Sunday Times:

Current laws allow the government to impose control orders on people who they suspect pose a serious terrorist threat, but who they do not have evidence to prosecute. Control orders can restrict where suspects are allowed to go, items they are not allowed to possess, and who they are allowed to see or communicate with. They do not require a trial and there are only limited rights of appeal. Do you think the Government should or should not have the power to use control orders?

A big majority, 73% say 'should', while 15% say 'should not'; the rest don’t know. The gap is slightly narrower than in mid-December (when 77% said 'should' and just 11% 'should not') but is still vast.

Then we asked about a possible compromise that had been mooted in the media:

Some people have suggested a compromise, where people subject to control orders would be allowed the freedom to leave their house, but would still be banned from going abroad and have limits on who they could meet. Which of the following best reflects your response to this suggestion?

This time, 38% said: ‘These changes would weaken control orders to an unacceptable extent and put people at greater risk from terrorism’, while 31% said ‘These changes are an acceptable compromise that would impact less on people's freedoms while still keeping us safe from terrorism’. A further 31% said ‘neither’ or ‘don’t know’.

Our question for Liberty produced a rather different response:

Which of the following is a better way of dealing with people suspected of terrorism, when they have not been arrested or charged?

  • Restricting where suspects can go and who they can meet, electronically tagging them and banning them from using telephones and the internet – 40%
  • NOT imposing such restrictions, but instead placing them under intensive surveillance and monitoring their communications, in order to gather evidence with which to prosecute them – 46%

This time, the public seems narrowly to be on the side of preserving the human rights of suspects, which is not the impression created by the Sunday Times questions. What is going on?

It is clear that on this issue, question wording matters. The first Sunday Times question framed the issue in broadly the terms advanced by pro-control order advocates in all parties – that there are people who pose a threat but, because of a shortage of usable evidence, cannot be charged. Put like that, the great majority accept that the age-old principles of habeas corpus should be abandoned, and some people should have their freedoms curtailed.

When the mooted compromise is posed in terms of the possible risk of terrorism, the proportion who find this acceptable rises to 31%, but this is still outweighed by the 38% who say that this ‘would weaken control orders to an unacceptable extent and put people at greater risk of terrorism’.

Liberty’s question is posed in a different context. It does not state or imply a trade-off between security and civil liberties, but simply poses two alternative ways of ‘dealing with people suspected of terrorism, when they have not been arrested or charged’. This time, slightly more approve of an approach that leaves their civil liberties intact.

I draw three conclusions. First, our findings are consistent with our past surveys: that if there is a trade-off then, for most people, national security trumps civil liberties. Those who argue for civil liberties to be upheld regardless of the risk of terrorism are in a small minority.

Second, that supporters of human rights and habeas corpus need to challenge that trade-off, rather than argue that civil liberties matter more than the threat of terrorism. If they can win the argument that control orders in practice do more harm than good (for example by alienating ‘moderate’ Muslims or because some of those subject to control orders still manage to evade their restrictions), then they can win over millions of voters.

Third, public opinion is fluid. When minds are made up, then question wording matters far less. People know which side they are on, and are less prone to be swayed by specific words or assumptions underlying the different questions. But when attitudes are less fixed, different questions can produce very different results. That is the position today with control orders.

This holds lessons for ministers as well as those whose passion is to defend civil liberties. The Government’s task will be to persuade the public that their new post-control-orders policy will work, and has been designed purely to defeat terrorism. If voters come to feel that the new policy has been devised to keep the coalition afloat rather than to keep us safe, it is likely to receive the thumbs down.