Terrorism, Security, and Liberty more

Terrorism, Security, and Liberty Does the war on terror necessitate a restriction of individual rights? Eilidh Douglas SCN 041841567 Carrick Academy Centre No. 8236739 April 2009 Table of Contents Introduction ....................................................................................................................3 Chapter 1: Is terrorism legislation necessary? ...............................................................5 Chapter 2: Do terrorists have human rights?..................................................................9 Chapter 3: What harm does a restriction of rights cause to democracy? .....................14 Conclusion ...................................................................................................................21 Bibliography ................................................................................................................23 Appendices ...................................................................................................................29 Appendix 1: Interview with Jamie Hepburn MSP ...................................................29 Appendix 2: Interview with Frank Mulholland QC .................................................46 Appendix 2.1: Written Answers ...........................................................................46 Page 2 of 55 Introduction The creation of the Universal Declaration of Human Rights (UDHR) in 1948 marked a new era in global affairs, as the protection of both civil and political rights and economic, social, and cultural rights became recognised as being crucial to international peace and security, and in the wider context of democratization and development of society. The crimes against humanity that scarred countless nations during the Second World War could not be repeated under any circumstances, and it was using the discourse of human rights that this was to be achieved. As the UDHR states: “...recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”1 Thus, human rights have become a prominent tool in solving international conflict: in the cases of Burundi, Rwanda, the former Yugoslavia and the Democratic Republic of the Congo, following up allegations of violations and establishing a framework for the protection of human rights were seen as key elements to their resolution 2. However, since the atrocity of 9/11 and ensuing attacks on many Western democracies, another word has entered the lexicon of national and international politics: terrorism. In recent years, human rights have been subject to compromise, their apparent inalienability curbed by the acknowledgement of a growing threat to 1 Universal Declaration of Human Rights, (1948), G.A. res. 217A (III), U.N. Doc A/810 at 71. [Online] Available from: http://www.unhchr.ch/udhr/lang/eng.htm 2 United Nations, (1998), Human Rights and Conflicts. [Online] Available from: http://www.un.org/ rights/HRToday/hrconfl.htm Page 3 of 55 national security. In combating this threat, the long-established methods of promoting human rights to resolve conflict have been replaced; rather than upholding our rights, we have been required to consider just how many we are willing to give up, in the name of preventing a further attack. In these terms, the debate of security versus liberty has thus been one of quantification. However, should such a debate even exist? This dissertation, concentrating specifically on terrorism in the United Kingdom, will seek not to answer the question of security versus liberty, but to negate it. Using the judicial tests of necessity and proportionality, I intend to assess the case for the introduction of the recent counter-terrorism legislation, with comparison to existing criminal laws. I then shall look at the treatment of terrorist suspects, to examine whether certain rights really are inalienable and universal, or whether exceptional circumstances determine differing prerogative. Finally, I will examine the everyday freedoms that terrorism legislation restricts, and assess to what extent the counter-terrorism measures themselves could pose a threat to democracy. Page 4 of 55 Chapter 1: Is terrorism legislation necessary? Terrorism has become a buzzword for the government and media alike, and it is acknowledged that, after the events of 7/7, there is a severe threat of terrorism in the United Kingdom3 . Hence, the UK government has produced various pieces of legislation in order to protect us from further terrorist attack, giving the government extended powers in the interest of national security. The first of these acts was passed in 2000, with a view to replacing the provisional measures put in place to combat the Irish terrorism in the 1980s. This act, the Terrorism Act 2000, was no such provisional measure, and has no expected expiry date, and thus we seem to have to accept that the “emergency” policies of a time of crisis have now become a daily norm. Though passed before the events of 9/11, which generated much of the current fears over terrorism, this act sought to define terrorism within UK law, and it is from this definition that all terrorism-related offences and measures derive from. The definition of terrorism has been something notoriously difficult to come to an agreement on, as more than a hundred definitions of it exist in various legislature and literature4 . Although something which “we probably know what it is when we experience it [and] when we see other people experiencing it”5 , with events of such scale and magnitude as 9/11 making the impact of the problem well known, in order to fight terrorism within the law, it was argued that a definition was required. 3 Home Office, (2009), Current threat level. [Online] Available from: http://www.homeoffice.gov.uk/ counter-terrorism/current-threat-level/ 4 Laqueur, W., (1999), The New Terrorism: Fanaticism and the Arms of Mass Destruction. New York and Oxford: Oxford University Press. (Cited in: Fotion, N. et al, (2007), Terrorism: The New World Disorder, London: Continuum International Publishing Group Ltd.) 5 Hepburn, J., (2009), Interview with Jamie Hepburn MSP, Convener of the Cross-Party Group in the Scottish Parliament on Human Rights and Civil Liberties. The Scottish Parliament: Edinburgh, 10 Feburary 2009. Page 5 of 55 Acknowledging terrorism as a new and dangerous threat, the Terrorism Act 2000 was introduced, defining terrorism in law as different from existing offences, as terrorism combines two key elements 6. The first of these, the terrorist acts themselves, is nothing new: there are already offences regarding the action of murder, damage to property, the use of explosives, etc., and also the conspiracy or solicitation to commit these acts7. However, the second element of terrorism, defined in subsection (1) as actions being “made for the purpose of advancing a political, religious or ideological cause” (this was later amended to also include a racial cause8) gives added complexity to existing law: it can be inferred that a terrorist crime is not considered as serious simply for the consequences of its actions, but for its motivation. Similar to a murderer who receives a greater sentence for a racially motivated crime, someone who commits mass murder in a public place is only a terrorist if they had a purpose behind their action. A shooting in a school may terrorise a section of the population, but does not fit the definition of “terrorist” because of lack of specific cause: it is mass murder, not terrorism. It would thus appear that the crimes of terrorists are not new at all, but in fact just the word “terrorism” which is applied to a certain threat. Groups most readily associated with such terrorism in the UK are generally Islamic militant groups, AlQaeda being the most well known, although the previous threat of Irish terrorism is 6 Section 1 states that “‘terrorism’ means the use or threat of action where … the use or threat is designed to influence the government or to intimidate the public or a section of the public, and the use or threat is made for the purpose of advancing a political, religious or ideological cause,” and also “involves serious violence against a person … serious damage to property… endangers a person’s life, other than that of the person committing the action … creates a serious risk to the health or safety of the public or a section of the public.” (In: Terrorism Act 2000 (c. 11), Section 1. London: HMSO.) 7 8 Offences Against the Person Act 1861 (c .100). London: HMSO. Counter-Terrorism Act 2008 (c. 28), Section 75. London: HMSO. Page 6 of 55 also recognised as a significant factor in the definition of terrorism. Therefore, it would appear the legislation is designed to target these specific groups: rather than combating their actions, it is the specific groups that are targeted. This in itself proves a threat to human rights, as the proscription of terrorist groups is decided by the Secretary of State9. Although the use or threat of violence is inherent in the definition of terrorism, it allows for the government to proscribe certain groups as terrorist, whilst others are not. Aside of the problems with the requirement of defining terrorism in itself, many of the new offences created to target the newly defined offence of terrorism may not be necessary. The Terrorism Act 2000 was designed to prevent rushed, ad hoc creation of new terrorism laws, which was one of the major flaws of Parliament’s response to Irish terrorism in the 1970s and 1980s. However, in recent years there have been no less than 5 acts significantly pertaining to terrorism, including the 2001 Act in response to 9/11; the 2005 Act in response to the Belmarsh judgment; and the 2006 Act in response to 7/7. From this, it would seem that any attempts to combat terrorism have been largely ineffective, if legislation is passed in a reactionary manner and bearing “little relationship to the logical and coherent development of the criminal law, but rather the government’s desire to give the impression of action.”10 Although the government argue that each new act regarding terrorism is necessary in order to provide a conviction of a terrorist suspect – appealing to the public wish for terrorists to be brought to justice – the Newton Committee noted in 9 Terrorism Act 2000 (c. 11), Section 3. 10Metcalfe, E., (2007), The Future of Counter-terrorism and Human Rights, Justice Futures series. [ O n l i n e ] Av a i l a b l e f r o m : h t t p : / / w w w. j u s t i c e . o r g . u k / i m a g e s / p d f s / futurecounterterrorismandhumanrights.pdf Page 7 of 55 December 2003, “it has not been represented to us that it has been impossible to prosecute a terrorist suspect because of a lack of available offences”11. This was demonstrated most clearly in the case of Abu Hamza, infamous for his radical Islamic views. During debates on the 2006 Act, government MPs suggested that the case of Mr Hamza illustrated the inadequacies of the existing law and the need for broader measures. However, when he was tried in February 2006, six of the eleven charges he was found guilty of were of soliciting to murder under the 1861 Offences Against the Person Act. The most recent act he was found guilty under was the Terrorism Act 2000, for possession of document or record containing information of a kind likely to be useful to a person committing or preparing an act of terrorism12. Even excluding this prominent example, the necessity of terrorism legislation is questionable. Home Office statistics show that of the 1228 arrests made from September 11th 2001 – 31st March 2007, only 41 convictions under terrorism acts were made, compared to 183 under other legislation13. These facts seem to speak for themselves: if barely any convictions can be made of terrorist suspects under terrorism legislation, then perhaps terrorism itself is an unnecessary addition to the statute book. Similar to mugging, which is not an offence in itself but constitutes a number of existing criminal offences, yet is a term widely used in the media to describe a specific type of violent theft, it could be said that terrorism is a political offence, and only its constituent parts can be dealt with within the criminal law. 11 Privy Counsellor Review Committee, (2003-04), Anti-Terrorism, Crime and Security Act 2001 Review Report (HC 100). London: HMSO. [Online] Available from: http://www.statewatch.org/news/ 2003/dec/atcsReport.pdf 12 The Crown Prosecution Service, (2006), CPS Press Release: Abu Hamza convicted of eleven charges. [Online] Available from: http://www.cps.gov.uk/news/pressreleases/archive/2006/105_06.html 13 Home Office, (2009), Terrorism and the law. [Online] Available from: http:// www.homeoffice.gov.uk/security/terrorism-and-the-law Page 8 of 55 Chapter 2: Do terrorists have human rights? The inflammatory connotations of terrorism have incited a great reaction from the public, and terrorists are treated with a great degree of contempt by the tabloid press, with some suggesting that terrorists and terrorist suspects should not be subject to the same rights afforded to others14. The public, although perhaps not quite as aggressive in opinion as some headlines, seem to generally support a differing system of rights for terrorists. Where support for the death penalty - a violation of the right to life under Article 3 of the UDHR - in every other type of murder is an average of 24 percent, in cases of terrorism the figure increases to 46 percent 15. However, human rights are, by definition, to be applied universally to all human beings, so should terrorists be treated differently to other criminals, and other human beings in general? One argument in favour of terrorists being exempt from the protection of certain rights is the rhetoric, “why should terrorists benefit from the very rights they are trying to destroy?” Indeed, terrorist offences that kill people violate Article 3, and the purpose of terrorism to disrupt government attempts to undermine democracy, the system which allows for the exercising of human rights protections. Therefore, it would seem that terrorists, through their actions, express negation of such protections. However, asking such rhetorical questions as the one above, it is argued, is like 14 Sun articles included the criticising of: legal aid being available to terrorist suspects (In: Anon, (2008), £5million spent on terrorists, The Sun, 5 November 2008. [Online] Available from: http:// www.thesun.co.uk/sol/homepage/news/article1893887.ece); suspects under control orders receiving benefits (In: Wilson, G., (2009), More than half of terrorists on dole, The Sun, 13 January 2009. [Online] Available from: http://www.thesun.co.uk/sol/homepage/news/article2125197.ece); and the compensation awarded to Abu Qatada after he won a case regarding the breach of his right to no detention without trial (In: Anon, (2009), Hate preacher awarded £2,500, The Sun, 19 February 2009. [Online] Available from: http://www.thesun.co.uk/sol/homepage/news/article2253504.ece). 15 Ipsos Mori, (2006), Britain Today Poll. [Online] Available from: http://www.ipsos-mori.com/content/ britain-today.ashx Page 9 of 55 asking, “Why should a guilty criminal get a fair trial?”16 The processes of the criminal justice system and rights put in place to ensure a fair trial is the process by which we determine the guilt of an individual; it is a legal convention that everyone charged with a criminal offence is presumed innocent until proven guilty 17. However, in terrorist cases it seems that the public may, dangerously, misunderstand this concept, as the belief for derogation from certain rights and protections is deemed just. Although the earlier reference to public support for the death penalty is only a hypothetical example of how the rights of terrorists is deemed secondary to those of others (as there has been no suggestion whatsoever of the reintroduction of the death penalty in Britain), even the right to life is derogable under certain circumstances 18. One right, however, is completely non-derogable, with no conditions allowing for its suspension: the prohibition of torture19 . On this issue, the government is firm in its policy: UK agencies and police have not and will never engage in these practices 20. However, with an increased terrorist threat within the UK, an issue linked to torture has proved controversial: deportation. In many ways, the use of deportation on grounds of national security is the oldest of counter-terrorism measures; for example, following Fenian bombings in 1883, there were a number of suspects deported, in order to disrupt terrorist activity 21. Deportation is also seen as an effective measure 16 Luban, D., (2007), Eight Fallacies About Liberty and Security. (In: Ashby Wilson, R., ed. (2005), Human Rights in the ‘War on Terror’, Cambridge: Cambridge University Press. pp. 242-257.) 17 18 19 Human Rights Act 1998 (c. 42), Article 6(2). London: HMSO. Human Rights Act 1998 (c. 42), Article 2. Human Rights Act 1998 (c. 42), Article 3. 20 HM Government, (2009), CONTEST 2 Strategy. [Online] Available from: http:// security.homeoffice.gov.uk/news-publications/publication-search/general/HO_Contest_strategy.pdf 21 Metcalfe, E., (2007). Page 10 of 55 against a terrorist threat, as where the alternative of prosecution of a suspect requires many human rights protections 22, deportation allows for the Secretary of State to remove foreign nationals if their doing so is “conducive to the public good.”23 Therefore, it would seem that the bypassing of human rights is acceptable in the protection of the population from terrorism, in some cases even if a risk of torture was posed to the subject of deportation in their home country. For example, in the case of Chahal vs. United Kingdom, the government argued that the risk that Mr Chahal was alleged to pose to national security outweighed their obligation not to expose him to torture by sending him back to India. The existence of such a case suggests that commitment to human rights, even non-derogable ones, were subject to compromise in cases of terrorism. However, this argument was rejected on the basis that there could be no derogation from Article 3, even in a national emergency, setting the precedent for any debate on the right to prohibition from torture, and security issues 24. Evidently, in terms of human rights, terrorists should still be afforded the same protections as everyone else. Terrorists, however, still present many issues that set them apart from ordinary criminal cases, and therefore it is argued that “a specialist response is required to overcome the difficulties posed for the normal detection methods and processes 22 Prosecution has the safeguards of the requirement of reasonable suspicion before arrest, evidence to support charges, the presumption of innocence, the right of the accused to know the evidence against him or her, the right to cross-examine witnesses, etc. (In: Human Rights Act 1998 (c. 42), Article 6.) 23 Immigration Act 1971 (c. 77), Section 3(5)(b). UK Statute Law Database. [Online] Available from: http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1971/plain/cukpga_19710077_en_1 24 Chahal v. The United Kingdom, 70/1995/576/662, paras 79-80. Council of Europe: European Court of Human Rights, 15 November 1996. [Online] Available from: http://www.unhcr.org/refworld/docid/ 3ae6b69920.html Page 11 of 55 within criminal justice.”25 Such responses, though restrictive on the human rights of terrorist suspects, are seen as necessary by the government for our collective protection; this implies collective security does take precedence over individual rights, and that the rights of terrorists are different. For example, due to the increasing complexity and scale of terrorist investigations, in terms of material seized, use of false identities, multiple languages and international links, it was suggested that there should be an increase in the amount of time for which a person can be detained without charge26, potentially violating human rights regarding liberty and security 27. However, the controversial proposal of 90-day detention was voted down, the first defeat of a bill proposed by Tony Blair since he came to power and, more recently, a plan for 42-day detention was defeated in the House of Commons by 191 votes. This would suggest that, however complex the threat, human rights safeguards should still apply. However, there are still some concerns from human rights organisations: even the current figure of 28 days is more than double that of the next largest detention period for comparable countries, suggesting that our pre-charge detention is still excessive28. A solution to the argument of the need for “more investigating officer time” whilst also maintaining human rights 25 Mulholland, F. (2009). Interview with Frank Mulholland, Solicitor General for Scotland. Crown Office: Edinburgh, 1 April 2009. 26 Terrorism Bill (2005-2006) 55, Section 23. Terrorism Bill (2005-2006) 55, Section 23. [Online] Available from: http://www.publications.parliament.uk/pa/cm200506/cmbills/055/2006055.pdf 27 28 Human Rights Act 1998 (c. 42), Article 5. Australia has the next largest allowance for pre-charge detention, at 12 days; Turkey is 7½ days; Russia 5 days; South Africa, Germany, New Zealand and America (where perhaps the greatest terrorist threat lies) 48 hours; and Canada 24 hours. (In: Cockcroft, L., (2008), Timeline: How the 42 day detention plan was dropped, Telegraph, 14 October 2008. [Online] Available from: http:// www.telegraph.co.uk/news/uknews/3192876/Timeline-How-the-42-day-detention-plan-wasdropped.html; and Major, J., (2008), 42-day detention: the threat to our liberty, The Times, 6 June 2008. [Online] Available from: http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/ article4075503.ece). Page 12 of 55 has been suggested; rather than increasing detention time, police resources should be increased, in order to process the enormity of such cases within the existing allocated time29 . Arguably, in this fashion, both rights and security are maintained, without compromise to either. 29 Both Jamie Hepburn MSP and Professor of Law Gary Slapper mention police resourcing in their interview and Times Law article respectively.(In: Hepburn, J., (2009); and Slapper, G., (2008), 42 days: bowing to terrorism, The Times, 4 June 2008. [Online] Available from: http:// business.timesonline.co.uk/tol/business/law/article4067478.ece) Page 13 of 55 Chapter 3: What harm does a restriction of rights cause to democracy? There is seemingly overwhelming public support for the loss of some individual rights in order to improve security against terrorist attacks, with 73% being in favour of such a trade-off30. However, a more in-depth look at this issue shows that the support for terrorism measures and the loss of rights varies considerably, depending on the likelihood of such a loss being put into practice. The so-called Mel Brooks theory of rights proposed by David Luban suggests that the question of rights versus security is framed by many as a trade-off of others’ rights, particularly those of the presumed guilty, for my security 31. This “someone else’s rights” mentality is demonstrated by the varying support for various types of terrorism legislation. For example, in various polls conducted between 2003-2005, 62% of those asked supported making it easier to deport foreign nationals who spread radical Islamic views even if it means sending them back to countries that use torture, 68% supported the holding of terrorist suspects for up to three months, and 62% supported indefinite detention of foreign terrorist suspects 32. However, the support drops considerably for other measures: only 43% support greater police powers to eavesdrop on people (for example using phone tapping or the reading of email conversations) 33. Evidently, people have less support for measures that may affect them directly, as opposed to 30 ICM Research Limited, (2005), Guardian Opinion Poll. [Online] Available from: http:// www.icmresearch.co.uk/pdfs/2005_august_guardian_august_poll.pdf 31 Mel Brooks once remarked that “tragedy is when I break a fingernail, and comedy is when you fall down a manhole and die”, and it is on this which Luban bases his theory of rights in the essay, Eight Fallacies About Liberty And Security. (In: Ashby Wilson, R., ed., (2005).) 32 ICM Research Limited, (2004), BBC Terrorism Survey. [Online] Available from: http:// www.icmresearch.co.uk/pdfs/2004_may_bbc_terrorism_poll.pdf ; ICM Research Limited, (2005), Guardian Opinion Poll. 33 ICM Research Limited, (2003), BBC Radio Five Live Terrorism Poll. [Online] Available from: http:// www.icmresearch.co.uk/pdfs/2003_february_bbc_Radio_five_live_terrorism_poll.pdf Page 14 of 55 those which only have real effect when one is in the position of a suspected terrorist, a situation that average law-abiding citizens do not expect to find themselves in. Furthermore, one YouGov Poll posed the question: “Taking everything into account, which matters more to you, national security and the prevention of terrorism, or the civil liberties of people that the intelligence services believe to be planning terrorism?”34 The fact that the question is framed in such a way to imply that it is only the rights of suspected terrorists that are being compromised for national security shows the narrow way in which the debate is considered. This dangerous form of bias risks ignoring much of the wider powers of the legislation, as people do not consider themselves to be directly affected by it. There is evidence to suggest that the legislation brought in recently in the name of counter-terrorism does pose many difficulties for the civil liberties of the entire population, and not just those who fall suspect of being involved in terrorism. The potential for misuse of police powers have been highlighted in various highprofile cases, and it is argued that this potential is a great threat to democracy. One such liberty that has been subject to curtailment in recent years is the right to freedom of speech and expression “without interference by public authority and regardless of frontiers”, its importance clearly shown by the fact that its protection is enshrined on global, European, and national levels35. However, although there are 34 YouGov Ltd., (2005), Daily Telegraph Survey. [Online] Available from: http://www.yougov.co.uk/ extranets/ygarchives/content/pdf/TEL050101007_1.pdf 35 This statement concerning freedom of speech is contained within the UDHR, the European Convention on Human Rights (ECHR), and the Human Rights Act (HRA) respectively. Page 15 of 55 protections, there is also the duty to hold conduct within the boundaries of “restrictions or penalties as are prescribed by law … necessary in a democratic society” and thus, in the interests of national security, there is the legal basis for some restriction on our ability to voice our views36. Therefore, as a reaction to radical Islamic clerics encouraging the use of violence in their speeches, the government deemed it necessary to bring forward legislation that placed a restriction on free speech, in order to protect the wider public37. A group of experts in international law, national security, and human rights convened by Article 19, the International Centre Against Censorship, attempted to propose the limits of legislation differentiating between free speech and threats to security, producing highly respected guidelines that restrict offences only to statements that demonstrate “a direct and immediate connection between the expression and … occurrence of such violence.” The newly introduced offence of “glorification” of terrorism, however, has much wider-ranging power: it makes a statement, whether made with intention or is simply “reckless” as to whether it is “a direct or indirect encouragement or other inducement … to the commission, preparation or instigation of acts of terrorism” an indictable offence with a maximum penalty of seven years’ imprisonment. Allowing for much wider scope of interpretation than other conventional criminal offences, it is suggested that 36 37 Human Rights Act 1998 (c. 42), Article 10. Charles Clarke stated that “there are people in this country who are susceptible to the preaching of an argument or a message that terrorism is a worthy thing, a thing to be admired, a thing to be celebrated…What this Bill is about is trying to make that more difficult, that transition from people encouraging, glorifying to then an act being undertaken.” (In: Hansard Commons Draft Terrorism Bill, Written and Oral Evidence, HC 515-I, October 11 2005,Q3. [Online] Available from: http:// www.parliament.the-stationery-office.co.uk/pa/cm200506/cmselect/cmhaff/515/5101102.htm) 8 Article 19, (1996), The Johannesburg Principles on National Security, Freedom of Expression and Access to Information. [Online] Available from: http://www.article19.org/pdfs/standards/ joburgprinciples.pdf 9 Terrorism Act 2006 (c. 11), Section 1. London: HMSO. Page 16 of 55 suppression of valid political discourse is wholly possible, and thus the act has been subject to much criticism. For example, under this offence, a Zimbabwean who has advocated the overthrow of the regime while resident there, and who then seeks safety in the UK as a refugee, may be liable for prosecution. Furthermore, there were even calls for the future prosecution of Cherie Booth, for stating in a speech: “in view of the illegal occupation of Palestine land, I can well understand how decent Palestinians become terrorists.” Evidently, the very political nature of what constitutes a terrorist offence, as well as the added vagueness of “glorification”, makes the controversial line between terrorism and freedom fighting very difficult to draw, so the restriction of freedom of speech could have severe consequences for the ability to criticise the government, an important part of democracy. Section 58 of the earlier Terrorism Act 2000 also has resulted in some blurring of the lines between what constitutes a security threat, and reasonable freedom of expression, as the collection of “information of a kind likely to be useful to a person committing or preparing an act of terrorism” has been subject to wide interpretation. For example, the internet sites of proscribed organisations could be considered terrorist publications, and thus their viewing would be an indictable offence, whether the intention was to commit a terrorist act or not. From this, it could be inferred that morbid, or plain stupid, but nevertheless harmless curiosity towards terrorist Liberty, (2006), Terrorism Act will make us less safe. [Online] Available from: http://www.libertyhuman-rights.org.uk/news-and-events/1-press-releases/2006/terrorism-act-will-make-us-less-safe.shtml Branigan, T. and Hencke, D., (2005), Rebels wring new terrorism concessions from Clarke, The Guardian, 3 November 2005. [Online] Available from: http://www.guardian.co.uk/politics/2005/nov/ 03/terrorism.immigrationpolicy Terrorism Act 2000 (c. 11), Section 58. Page 17 of 55 organisations or their methods could result in conviction. Although the viewing of child pornography presents a similar issue, as some accused offer the defence of having viewed simply for research purposes, with no intention of committing the acts represented, these defences are usually unsuccessful, as the act of viewing is an offence in its own right. However, in the case of terrorism, by prosecuting those who view sites deemed as terrorist-related, even without intention to commit terrorist acts, freedom of information is heavily restricted. For example, human rights activist Hyrbyair Marri was tried for the viewing of the websites of the Baloch Liberation Army (BLA), a proscribed terrorist group, although was eventually found not guilty. The implications of such a prosecution, had it been successful, would be a great restriction on the ability to have freedom of opinion. If an individual is unable to inform themselves on proscribed organisations from the perspective of the organisations themselves, then a balanced view of the actions and motives of organisations is difficult to achieve. Through this legislation, the political views of proscribed groups are instantly made inaccessible, impeding the ability of the public to judge for themselves the threat posed, and thus impeding democratic process. As well as the broad nature of new offences imposing risk upon individual liberty, there is evidence to suggest that counter-terrorism measures are being used inappropriately in conjunction with incidents unrelated to a terrorist threat, in particular to limit the right to protest. Authorisations under Section 44 of the Terrorism Act 2000 allow police to stop and search any person and any vehicle, but Hepburn, J., (2009). Protection of Children Act 1978 (c. 37), Section 1. London: HMSO. Tatchell, P., (2008), Baluchistan Leader on Terror Charges in London, UK Watch, 25th April 2008. [Online] Av a i l a b l e from: http://www.ukwatch.net/article/ baluchistan_leader_on_terror_charges_in_london Page 18 of 55 “only if the person giving it considers it expedient for the prevention of acts of terrorism.” However, a number of high-profile cases have highlighted misuse of such authorisations. In 2003, a bus of protesters travelling to Gloucester to protest against the Iraq war were served with Section 44 orders requiring them to return to London, accompanied by a police escort; when challenged, the decision was ruled unlawful by a High Court decision in 2007 38. Similarly, at the 2005 Labour Party conference, 82year-old Walter Wolfgang was forcibly removed from the premises by conference stewards for shouting “nonsense!” during a speech by Jack Straw, under a section 44 authorisation. In both cases mentioned, no risk of a terrorist attack was evident, yet counter-terrorism powers were used: a restriction of human rights was not implemented for the purpose of national security at all. Without sufficient checks and restrictions upon legislation, a serious risk is thus posed to the ability for the public to participate actively in democracy, and the risk of arrest may encourage the public to shy away from protest altogether. Indeed, one of the Gloucester war protesters, when interviewed, said that for many of her friends it had been their first demonstration, and they had not participated in any after that event 39. The wide-ranging nature of terrorism legislation and the lack of correct usage of powers proscribed by this legislation appear to amount not just to a restriction upon liberty for security, but a direct threat to our ability to participate in political discussion and protest. By constraining civil liberties without specific context towards terrorism, we change considerably our response towards the structure of democracy, Terrorism Act 2000 (c. 11), Section 44. 38 Taking Liberties, (2007), Directed by Atkins, C., Revolver Entertainment. [DVD] Duration 100 minutes. 39 Taking Liberties, (2007). Page 19 of 55 the very thing that, arguably, terrorism aims to alter. As Lord Hoffman remarked in his decision regarding the Belmarsh detainees: “The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve.”40 40 A and others v Secretary of State for the Home Department, (2004), UKHL 56, para 97. [Online] Available from: http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&oth-6.htm Page 20 of 55 Conclusion Terrorism has been a controversial form of crime which has posed a threat to the United Kingdom in one form or another over many centuries, from the Gunpowder Plot in 1605, to Irish terrorism, to the Islamic extremism we face today. And it shows no sign of going away, either, with 66% of people believing that the war on terror will not end in their lifetime41 . Something must evidently be done to protect society from such a destructive force, and just as the United Nations agreed to prevent a future world war, the way forward must be the consideration of human rights. To erode fundamental rights, it would seem, is to take a considerable step backwards, allowing the potential for further encroachment; as we have already seen, there have been five substantial terrorist-related acts in recent years, each providing greater and wider-ranging police powers. Although the complex methods and structure of global terrorism does provide new challenges for government and police, there is little evidence to suggest that terrorists can not be dealt with as criminals, and with specialised procedure that does not detract from their rights; it is police resources which must be increased, not the human rights of suspects decreased. If we create a culture of fear which fosters the acceptability of removing human rights, there is always the risk of the misuse of laws, as has already been demonstrated by cases where free speech and peaceful protest have been wrongly curbed, under the guise of terrorism. By doing so, we remove the conventional channels by which political views are heard, and may even foster extremism as a last 41 YouGov Ltd., (2006), Sky News Survey. [Online] Available from: http://www.yougov.co.uk/extranets/ ygarchives/content/pdf/OMI060101153.pdf Page 21 of 55 resort for those unable to be heard. Therefore, we must ensure that democracy is protected, as this is the very thing which terrorists are attempting to uproot; by removing our rights in the name of counter-terrorism, we are conceding to the exact definition of terrorist acts, acts which incite fear in the population in order to cause a change in society. Reassuringly, there are checks maintained on terrorism laws, with regular independent review by Lord Carlile allowing laws to be scrutinised; this may suggest that human rights are being taken into account, as there has been criticism and amendment of terrorism bills through such process 42. However, such checks only analyse the implementation of the laws after they have been applied, and have not prevented many worrying misuses of legislation in the past. Short of repealing existing legislation, the only way forward is to continue with regular assessment of the laws, and make sure that the police and judicial systems can be openly criticised. Otherwise, by forcing terrorist-related offences into secrecy on the grounds of national security, we risk losing our ability to bring government agencies to account. Everyone, regardless of whether they are an ordinary citizen or a suspected terrorist, has the right to both liberty and security of person, as Article 3 of the UDHR states, showing clearly that they are not interchangeable values which can be tradedoff against each other in times of crisis 43 . Intrinsically linked, fundamental rights and the rule of law are part of our security, not “trumps” which impede it. Our counterterrorism strategy, therefore, must maintain human rights at all costs, or risk greater damage to the very democracy we are trying to protect. 42 Home Office, (2009), Independent review of legislation. [Online] Available from: http:// security.homeoffice.gov.uk/legislation/independent-review-legislation/ 43 Universal Declaration of Human Rights, (1948). Page 22 of 55 Bibliography • A and others v Secretary of State for the Home Department, (2004), UKHL 56. [Online] Available from: http://www.publications.parliament.uk/pa/ld200405/ ldjudgmt/jd041216/a&oth-6.htm • Amnesty International, (2007), Amnesty International Report 2007. Amnesty International, (2008), Amnesty International Report 2008. Anon, (2008), £5million spent on terrorists, The Sun, 5 November 2008. [Online] Available from: http://www.thesun.co.uk/sol/homepage/news/article1893887.ece • • • Anon, (2009), Hate preacher awarded £2,500, The Sun, 19 February 2009. [Online] Available from: http://www.thesun.co.uk/sol/homepage/news/ article2253504.ece • Anti-Terrorism, Crime and Security Act 2001 (c.24). London: HMSO. Article 19, (1996), The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, [Online] Available from: http:// www.unhcr.org/refworld/docid/4653fa1f2.html • • Ashby Wilson, R., ed. (2005), Human Rights in the ‘War on Terror’, Cambridge: Cambridge University Press. • Blair, T., (2006), Prime Minister’s Press Conference, London, 26 February 2006. [Online] Available from: http://www.number10.gov.uk/Page9098 Page 23 of 55 • Blair, T. and Porter, H., (2006), Britain’s liberties: The great debate, The Observer, 23rd April 2006. [Online] Available from: http://www.guardian.co.uk/ commentisfree/2006/apr/23/humanrights.constitution • Branigan, T. and Hencke, D., (2005), Rebels wring new terrorism concessions from Clarke, The Guardian, 3 November 2005. [Online] Available from: http:// www.guardian.co.uk/politics/2005/nov/03/terrorism.immigrationpolicy • Chahal v. The United Kingdom, 70/1995/576/662, Council of Europe: European Court of Human Rights, 15 November 1996. [Online] Available from: http:// www.unhcr.org/refworld/docid/3ae6b69920.html • Clapham, A., (2007), Human Rights: A Very Short Introduction, Oxford: Oxford University Press. • Cockcroft, L., (2008), Timeline: How the 42 day detention plan was dropped, Telegraph, 14 October 2008. [Online] Available from: http://www.telegraph.co.uk/ news/uknews/3192876/Timeline-How-the-42-day-detention-plan-wasdropped.html • Counter-Terrorism Act 2008 (c.28). London: HMSO. Fotion, N. et al, (2007), Terrorism: The New World Disorder, London: Continuum International Publishing Group Ltd. • • Hansard Commons Draft Terrorism Bill, Written and Oral Evidence, HC 515-I, October 11 2005,Q3. [Online] Available from: http://www.parliament.thestationery-office.co.uk/pa/cm200506/cmselect/cmhaff/515/5101102.htm Page 24 of 55 • Hepburn, J., (2009), Interview with Jamie Hepburn MSP, Convener of the CrossParty Group in the Scottish Parliament on Human Rights and Civil Liberties. The Scottish Parliament: Edinburgh, 10 Feburary 2009. • HM Government, (2009), CONTEST 2 Strategy. [Online] Available from: http:// security.homeoffice.gov.uk/news-publications/publication-search/general/ HO_Contest_strategy.pdf • Home Office, (2009), Current threat level. [Online] Available from: http:// www.homeoffice.gov.uk/counter-terrorism/current-threat-level/ • Home Office, (2009), Independent review of legislation. [Online] Available from: http://security.homeoffice.gov.uk/legislation/independent-review-legislation/ • Home Office, (2009), Terrorism and the law. [Online] Available from: http:// www.homeoffice.gov.uk/security/terrorism-and-the-law • Human Rights Act 1998 (c.42). London: HMSO. ICM Research Limited, (2003), BBC Radio Five Live Terrorism Poll. [Online] Available from: http://www.icmresearch.co.uk/pdfs/ 2003_february_bbc_Radio_five_live_terrorism_poll.pdf • • ICM Research Limited, (2004), BBC Terrorism Survey. [Online] Available from: http://www.icmresearch.co.uk/pdfs/2004_may_bbc_terrorism_poll.pdf • ICM Research Limited, (2005), Guardian Opinion Poll. [Online] Available from: http://www.icmresearch.co.uk/pdfs/2005_august_guardian_august_poll.pdf Page 25 of 55 • Immigration Act 1971 (c. 77), Section 3(5)(b). UK Statute Law Database. [Online] Available from: http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1971/plain/ cukpga_19710077_en_1 • Ipsos Mori, (2006), Britain Today Poll. [Online] Available from: http:// www.ipsos-mori.com/content/britain-today.ashx • Liberty, (2006), Terrorism Act will make us less safe. [Online] Available from: http://www.liberty-human-rights.org.uk/news-and-events/1-press-releases/2006/ terrorism-act-will-make-us-less-safe.shtml • Major, J., (2008), 42-day detention: the threat to our liberty, The Times, 6 June 2008. [Online] Available from: http://www.timesonline.co.uk/tol/comment/ columnists/guest_contributors/article4075503.ece • Metcalfe, E., (2007), The Future of Counter-terrorism and Human Rights, Justice Futures series. [Online] Available from: http://www.justice.org.uk/images/pdfs/ futurecounterterrorismandhumanrights.pdf • Mulholland, F., (2009), Interview with Frank Mulholland, Solicitor General for Scotland. Crown Office: Edinburgh, 1 April 2009. • Offences Against the Person Act 1861 (c.100). UK Statute Law Database. [Online] Available from: http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1861/plain/ cukpga_18610100_en_1 • Prevention of Terrorism Act 2005 (c.2). London: HMSO. Page 26 of 55 • Privy Counsellor Review Committee, (2003-04), Anti-Terrorism, Crime and Security Act 2001 Review Report (HC 100). London, HMSO. [Online] Available from: http://www.statewatch.org/news/2003/dec/atcsReport.pdf • Protection of Children Act 1978 (c. 37), Section 1. London: HMSO. Serious Organised Crime and Police Act 2005 (c.15). London: HMSO. Slapper, G., (2008), 42 days: bowing to terrorism, The Times, 4 June 2008. [Online] Available from: http://business.timesonline.co.uk/tol/business/law/ article4067478.ece • • • Taking Liberties (2007), Directed by Atkins, C., Revolver Entertainment. [DVD] Duration 100 minutes. • Tatchell, P., (2008), Baluchistan Leader on Terror Charges in London, UK Watch, 25th April 2008. [Online] Available from: http://www.ukwatch.net/article/ baluchistan_leader_on_terror_charges_in_london • Terrorism Act 2000 (c.11). London: HMSO Terrorism Act 2006 (c.11). London: HMSO Terrorism Bill (2005-2006) 55, Section 23. [Online] Available from: http:// www.publications.parliament.uk/pa/cm200506/cmbills/055/2006055.pdf • • • The Crown Prosecution Service, (2006), CPS Press Release: Abu Hamza convicted of eleven charges. [Online] Available from: http://www.cps.gov.uk/ news/pressreleases/archive/2006/105_06.html Page 27 of 55 • United Nations, (1998), Human Rights and Conflicts. [Online] Available from: http://www.un.org/rights/HRToday/hrconfl.htm • Universal Declaration of Human Rights, (1948), G.A. res. 217A (III), U.N. Doc A/810 at 71. [Online] Available from: http://www.unhchr.ch/udhr/lang/eng.htm • YouGov Ltd., (2005), Daily Telegraph Survey. [Online] Available from: http:// www.yougov.co.uk/extranets/ygarchives/content/pdf/TEL050101007_1.pdf Page 28 of 55 Appendix 1: Interview with Jamie Hepburn MSP The Scottish Parliament: Edinburgh, 10 February 2009. Eilidh Douglas: Right, firstly there is obviously – a lot of talk about terrorism in society – what would your definition of terrorism itself be? Jamie Hepburn: I’m very glad the first question is an easy one [laugh] – well I think – the first thing is we do have to except there is such a thing as terrorism and I suppose what I accept it to be is non-state actors – engaging in activities that are designed to – terrorise the population usually by – killing and – and or maiming them and usually directed at the civilian or a civilian population – so that is how I would probably characterise terrorism – I think that is probably very close to the understood – characterisation or definition of terrorism. ED: So do you believe that there needs to be an internationally – definitely agreed definition of terrorism before we can combat the problem? JH: That’s a good question – I’m not so sure we do because I don’t know that we could ever reach such an internationally agreed – depends what you mean by internationally agreed – I mean I suppose the answer is yes and no – if we could get one and for all I know there might be one but if the United Nations could have some – form of – description or understanding of the term, the concept then it might be useful – but I think we probably know – what it is – when we experience it – when we see other people experiencing it – so whether we actually need a rigid legal – concept I’m not so sure. Page 29 of 55 ED: Do you not think that if there was a – a legal rigid concept it would – make it a lot easier for – for example the United Nations to – maintain checks on the laws being implemented against terrorism? JH: Well yes although – this is one of the weaknesses one of the institutional weaknesses of the United Nations I suppose and I don’t know that it is so much their role their responsibility or if they have the authority to keep – a check of various domestic – law in relation to – terrorism or anything else for that matter – I suppose they do have a check on in relation to how the various member states of the United Nations – adhere to internationally agreed treaties and if there was internationally agreed treaty for combating terrorism then I suppose they would have a role in – in ensuring that – the various member states were adhering to that. But even when they don’t it’s notoriously difficult I suppose for the United Nations to ensure that states do act accordingly. ED: How would you find a definition between – terrorism and freedom fighting, for example in the – first and second world war – Germany called the French revolutionaries terrorists – and the ANC in Africa which is now one of the leading parties was once described as a terrorist organisation? JH: Yes indeed and close closer to home we have – Sinn Féin – IRA as many people – pejoratively suppose use both terms interchangeably – this is one of the areas of difficulty I suppose I was referring to in saying it being difficult I think to have an agreed international definition because – there is varying understandings of – what these groups you know many in the west find some groups as terrorist whereas other parts of the world may not – we may define some groups as terrorist whereas some Page 30 of 55 people in the Basque country for example might not – that that’s where it gets difficult. I think the examples you use – are fairly clear cut though they – they are I would argue – I don’t know if all would argue – I would argue they are a misuse, a misappropriation of the term terrorist. I don’t think anyone would accept the Nazi state’s characterisation of those in the French resistance, or the Dutch resistance, or the – Yugoslav partisans or whoever as terrorist – I wouldn’t accept that – at all – the ANC also were characterised as terrorist by the South African apartheid regime and – and you know there were some other countries such as you could look at the Thatcher government they came pretty close to characterising – the ANC – in fact I think they did have the ANC as a proscribed terrorist organisation. Again I’m not so sure – but you know that there are other more dubious – debateable examples I think. ED: Do you feel that – from day-to-day there is a definite threat of terrorism in the UK? JH: I think it’s exaggerated – but I do think there is – one does exist – if one didn’t exist then we wouldn’t have had the bombings on the – London Underground, the buses in London – we wouldn’t have had – two men driving a land rover filled with homemade explosives into Glasgow airport. So yes one does exist – is it in proportion with the – the scale of threat we’re told faces us? I think – probably not. But – it cannot be denied there is a terrorist threat. I think – I think that’s fairly clear you know we can talk about the origins of – where the – the genesis of this threat – what role – UK foreign policy has played – but I think the bottom line is that yes there is one. Page 31 of 55 ED: Do you feel that this threat is – a new type of development in terms of the attacks being committed as opposed to terrorist organisations’ actions in the past, for example the IRA and the characterisation of the ANC as a terrorist organisation? JH: Well in the circumstances of the ANC – almost certainly because the ANC – weren’t carrying out any terrorist attacks on – the mainland UK so – we can discount them immediately – there are similarities – with the campaign – waged by the – provisional Irish Republican Army some of its offshoots – there are – there are similarities insofar as they – and some of the newer organisations – the Islamic fundamentalist organisations we now see – there are similarities insofar as they do – or did in the case of the IRA – carry out attacks on the mainland UK. There are differences as well of course – because whilst the IRA – certainly had links to other – revolutionary – radical organisations – across various parts of the world – they did not have the same degree of – international links or – international operations as I think those who seek to carry out terrorist attacks in the UK now. ED: And in – terms of the terrorist threat, because although there are attacks on mainland Britain, the organisations are spread all over the globe in various cells – do you believe there should be more international response as opposed to for example individual national legislation? JH: Yes I suppose there should – I suppose in so doing you will also have to frame things – in your own domestic legislation it’s just whether that legislation is appropriate or not but yes I do think you certainly have to combat these things internationally – and it’s interesting also another thought occurs to me – another point to make is whilst we face this threat here I think it is no way – on no scale can it bear Page 32 of 55 relation to the threat posed – in some of the Islamic countries themselves. We really need to look at what happens in – Iraq with the – the – mess that exists there to see that – people aren’t facing a terrorist threat of a scale much larger than we actually face here. ED: Do you think that the war on terror is an appropriate use of vocabulary, is a war model the correct way to be attacking this problem? JH: I think it’s wholly inappropriate. I think it’s jingoistic, bombastic and – the genesis of much of the problem we now face are contained within this idea of a war on terror because it allows certain groups to say – well – you know when you say a war on terror, they don’t mean a war on terror they mean a war on us, and it has helped create this idea of a them and us – situation in the world – of which some of these groups – can prosper and thrive because they play up to that – so I think that the terminology was ill-advised and inappropriate. But I think there’s a growing – recognition that that is the case – even – latterly from the – the Bush administration itself – I’m no fan of the departed, the dearly departed Bush administration but I think even they themselves were not really using the term war on terror towards the end of their administration and I don’t think we’ve heard it form the UK administration for a while as well so hopefully they’ve realised but – they put it out there and it still exists and – I think it’s caused a lot of problems for us. ED: Do you feel that the recent government legislation – the two thousand, two thousand and one, two thousand and five, and two thousand and six terrorism acts respectively were appropriate responses? Page 33 of 55 JH: Probably not and I think you make the point yourself – reeling off all those years and I think it’s – crazy that there’s been so many different acts and beyond some of the acts and – I’m sorry to clarify what I mean by that I mean how could you pass a piece of legislation and see if it’s effective or not if you’re – if you’re changing it every year or so – I think that – that’s crazy – but beyond some of the specific legislation that’s been passed or the attempts at detention without trial as part of the – the terrorist acts – the terrorism acts I think have been – draconian, ill thought out and an attack on fundamental civil liberties that I think are unacceptable and ironically the very thing that we’re supposedly we’re meant to be fighting the so-called war on terrorism to – to preserve. And beyond that I think we have very recently for example seen the misuse of the – the terrorism legislation when we saw the arrestment of Icelandic bank accounts – or Icelandic bank assets – here in the UK using the legislation – quite clearly Iceland and Icelanders are not terrorists so to use the legislation against them – ED: So would you say that this legislation has a definite impact on the human rights of people in Britain from day-to-day? JH: Well I think as I’ve just answered – before my phone went [laugh] – it does – and also has an effect on people beyond – although I suppose your question is on a day-today basis – realistically I think the answer is no – it probably doesn’t – you know you or I could go about our business largely as we did before – but has the potential to impact on it and also it’s when you start passing legislation of that nature I think it can quite often be the thin edge – the thin end of the wedge and it fosters this idea that more and more of that type of legislation has to be passed and – that can have the Page 34 of 55 effect of curtailing our – civil liberties. For example accompanying this legislation has been the idea that we should have ID cards – which I think is a quite preposterous notion, I don’t think we – require them, I think they’d be costly, and perversely – I think they’d be very ineffective at combating – terrorism. For example in Spain they have ID cards and that didn’t stop the bombs going off on the trains in Madrid. So – I think – as things stand, now, on a day-to-day basis, they probably don’t, but that doesn’t mean – it’s not important – ED: So do you think the potential threat of legislation becoming an infringement on human rights is a justifiable trade-off for the security that it might allow us? JH: No, I don’t – because one I’m not so sure it makes us any more secure – and two– as I hinted at earlier if you are trying to – combat – or put off a threat who – which is predicated on the basis of preserving – civil liberties that they would like to inhibit, I don’t think that you can then inhibit the very civil liberties and freedoms that you – you are seeking to protect. That seems to be a – a futile way of going about it, as I would have thought. ED: So do you believe that all rights, taking those laid out in the Universal Declaration of Human Rights, that all those rights laid out should be protected at all costs – or are there some, for example, that could be restricted in the name of security? JH: I can’t think of a single one that I think should be restricted in the name of socalled liberty or freedom or – fighting the so-called war on terrorism because as the Universal Declaration itself sets out, that – you know – that none of the articles are Page 35 of 55 any more important than the other, they are all equally important and they are indivisible from one another so no – no I don’t think that you could – ED: So – in light of the existing legislation – how could we ensure that it is being used correctly and – against terrorists, as opposed to – for example inappropriate use like on protesters or the Icelandic banks? JH: Yup, yup, yup – it’s difficult because – the legislation – allows for the courts and the police and the government to act in certain ways – we have to constantly speak out against it and seek to have it changed ultimately – you know, that may take the form of ensuring the people that are elected to the various legislatures have respect for – human rights and civil liberties and ensure that legislation is passed in accordance with – these values. And also may involve seeking to – challenge the – the legality of these acts through the courts – if they are in contravention of our – human rights and civil liberties then we should challenge them, legally if need to be. ED: And – so – how would you like to see, for example, further legislation develop – what would you envisage as being the correct way to deal with the current terror threat? For example alternative legislation, if existing legislation is an infringement? JH: I think – well I don’t know that – existing legislation is an infringement in combating terrorism, I think the existing legislation that pertains to terrorism or in part pertains to terrorism is more of an infringement on – the civil liberties of all so I don’t know they – they are one and the same. I don’t know if I can answer that question off the top of my head – what legislation do I think is required to combat terrorism, I’m not so sure I do think legislation is – to be honest with you – I think it’s about Page 36 of 55 resourcing, vigilance and – ensuring that we are aware of the – the threat, any specific threats that exist and dealing with them when and if they arise. I don’t – I don’t know that legislation is the appropriate way to do that, to be honest with you. ED: So would you think that an increase in, for example, surveillance would help the terrorist threat at all? JH: It might – but let me clarify, I do not believe – in – the wholesale surveillance that some of this legislation – allows for – again that’s a challenge to our – individual – freedoms – and civil liberties and I don’t think that’s acceptable, we have a right to privacy. However, I agree – if either the police or security authorities can demonstrate that they think an individual or a group of individuals are engaged in subversive terrorist activity I think they should be able to go to a court, the court should be able to approve – the surveillance of these individuals, and they can proceed in – in that manner, the same way – they would if they wanted to bring down – I don’t know – a drug king, a drug baron, or – a smuggler or, you know, any other criminal – that’s not to say that the threats are all the same but – I think that that’s the appropriate way to deal with that. Now clearly, there will be times when you have to move swiftly and there will need to be a degree of flexibility – I’m not suggesting that you have to go before the full proceedings of court – but, provided you can have an appropriate mechanism whereby – there is some form of judicial process, I think that’s a more appropriate way. ED: What would your response be to the statement often given in defence of such surveillance laws, which is “nothing to hide nothing to fear”? Page 37 of 55 JH: I say that’s fairly – juvenile and – immature – way to view privacy, because – just because I have I have nothing to hide, doesn’t mean I don’t have a right to a private life, to – conduct my business in a private fashion – which I think some of this legislation – distinctly contravenes. So I – I don’t really accept – that – there is any logic – to that argument, to be frank. ED: And do you think that existing legislation has had an impact on the effect of terrorism in Britain, for example, do you think there would have been more incidents such as the Glasgow airport attack, had this legislation not been in place? JH: I really find it very difficult for me to answer that question, I’m not obviously involved on a day-to-day basis – combating – the terrorist threat we face – so I – I don’t know. I’m inclined to say probably not, because I think we could have, we could still ensure proper intelligence, proper surveillance through more traditional legalistic means than – those contained in the more recent legislation. ED: On a slightly more cynical point, do you think that the – JH: This hasn’t been cynical so far? [laugh] ED: the legislation that has been passed, in light of the restriction on human rights, do you think that the public would have been less – acceptant of it, had it not been – as a response to terrorism? JH: Yes – yes, I mean, you know, lets suppose the – bill was called the suppression of human rights act, or the suppression of civil liberties act – you know I think people would be more – up in arms about it. I think one of the problems we have is because it doesn’t affect people on a day-to-day basis, they don’t get up in arms about it. But Page 38 of 55 they should, because as I said before – it is the thin end of the wedge and if you – allow for more and more draconian – anti-civil-libertarian legislation – then you are opening up a can of worms, that I think could be very dangerous for us indeed, and I think we want to be very careful – how we approach this whole matter in future years as a society, I think we’ve got to be more awake to it. ED: I was just going to ask you about some – individual cases of legislation, to ask your opinion on those – JH: Sure, I probably don’t know them all in and out but, go for it – ED: the glorification of terrorism. There is some argument to suggest that there is already an act, or an offence of incitement to murder which could have covered it, and that this definition now is quite vague – would you agree with that? JH: I do agree – it’s a difficult one because, you know – if you take the case, there was the case of the young guy – was it, I think it was Clackmannanshire wasn’t it – he’s very young and he went on to one of these websites for one of these organisations and ultimately ended up being prosecuted – probably under that legislation – and, you know, was he really glorifying terrorism, was he satisfying morbid curiosity, was he being a stupid young man? It’s very difficult, and you know, I think it’s very difficult for people to, I think, sometimes stand back and rationally assess these things – I certainly think you need to have specific proof that someone’s trying to glorify acts of terror – you know, beyond, I think in some case, instances they’ve – suggested – you know, looking at the websites of Al Qaeda or Al Qaeda-like groups is, you know, proof enough, you know, people can look at websites for all manner of reasons – you Page 39 of 55 may even have done so for your, your studies – does that mean you’re glorifying terrorism? No it does not – but I would think, did we need a specific act I’m not so sure, probably legislation that existed before was sufficient enough. ED: Do you think that, in light of that sort of legislation, there should be definite proof of the intent to then go on to commit terrorist acts in order to – to make it more clear? JH: I would think so – I suppose the incitement – well I suppose the glorification of terrorism isn’t necessarily saying you’re going to – commit terrorist acts yourself, but – I suppose when it comes to any matter before the courts I think there should be – prima facie and sufficient proof there that someone is convicted of having committed a crime. So I’d probably agree with that for whatever crime before the courts you – you laid out whether it’s for shoplifting or glorifying terrorism – ED: Yes, in the act it says that someone is guilty of the offence if they are reckless as to whether members of the public will be directly or indirectly encouraged, so, do you think that’s perhaps a step too far in making the definition vague? JH: So run that by me again – if they are reckless – ED: Reckless of whether what they say could be directly or indirectly – seen as an incitement to terrorism. JH: That’s very close to – saying that – stupidity – is a criminal offence, which I suppose in some instances it can be if it then leads to – harm for someone else – so – I’m not quite sure how to answer that really, to be honest with you. Page 40 of 55 ED: Do you think that people having to apply in order to hold a protest – is a correct form of legislation? JH: This specifically in the square mile around Westminster? ED: Yes, but in general do you think if that was implemented elsewhere it would help prevent terrorism? JH: I don’t think you should have to apply for a protest – if you’re going to organise a major rally and march, then there are obviously public safety issues and clearly you’re going to have to interact with the authorities for them to help organise it, coordinate it, and ensure it goes off without any – danger or harm to the public. So that’s the way it works traditionally – if you want to organise a rally in Glasgow you need to let the city council know, and the police know and they’ll work with you and you can organise your – your rally or your protest. However, the act that exists, specifically in relation to the vicinity of Westminster, as I understand it, is far more wide-ranging than that. For example, I’m not wearing a badge today but I could be wearing my SNP badge as I commonly do, on the lapel of one of my suit jackets and that could be viewed as a protest, as I understand it – within the – the one mile vicinity of Westminster – that is ludicrous, that is of course a nonsense, that is not an act of protest, that is an act of self-expression which is one of the – the fundamental human rights and civil liberties we are of course guaranteed in the – in the UDHR. So – I would be very concerned if that type of legislation was to be taken out any wider, any further, I’m already concerned enough that it can exist for that portion of London. Of course we all know it was brought in because they were getting fed up with Brian Haws’ – Haws? – is that the – Page 41 of 55 ED: Haw, yes – JH: Haw, Brian Haw’s – ED: Although of course that legislation didn’t affect him – JH: Well indeed it didn’t – ED: It’s not allowed to be retrospective – JH: It couldn’t be retrospective, that’s right, that’s exactly the point you’re making, he – I can’t remember if he challenged it in the court or if just – someone challenged it in court but the judge ruled that way – the irony of course is that Brian Haw can continue – the protest that this legislation was brought in – in part, if not entirely – to – to halt. And that in itself is a nonsense, you cannot have a national – international of course – in the case of the UK because I view Scotland as a nation in its own right – legislature such as the United Kingdom parliament passing laws to try and stave off some of the embarrassment that some of its members face to walk by a man – in my opinion rightly berating some of them for having taken – British troops into an – illegal and ill thought-out escapade in the Middle East. ED: So do you believe, then, the way forward in combating terrorism – particularly in the UK – is not through legislation, the creation of new offences, but through, for example more intelligence and police presence? JH: Yes. This is probably the shortest answer I’ll give you, yes. ED: Do you think, in light of greater police presence, that this will actually stop the terrorist offences, for example the IRA and political protesters were avoiding to any Page 42 of 55 extent getting caught and doing harm to themselves, whereas Al Qaeda there tends to be more implementation of suicide bombings, there tends to be a more apocalyptic nature to it? In what ways could we combat that? JH: Well – when it’s right before you, it’s very difficult – of course it is – and that’s – hopefully down to the individual – cultural differences between the two types of terrorist in fact I’ve got a story in relation to that – I used to be involved in an – an organisation called the interislands forum for the use of political parties across – the British Isles, the Republic of Ireland, and the various constituent parts of the United Kingdom. And one of the pupils involved in that project had worked previously with a guy who had been in – in the IRA, been active in the IRA, carried out many acts of terrorism I suppose for the IRA and he apparently once said to this guy that the – the September the eleventh two thousand and one events – he said to this guy, he said I just can’t understand why these guys would do that, these guys are crazy, and it had to be pointed out to this guy that, you know, well I can’t understand why you did what you did, I think you guys were crazy – and he hadn’t thought of it in that way, for whatever reason. So where was I going with that? Well it’s just to demonstrate – I suppose the point that – you can’t always see yourselves as others see us, as Robert Burns was once heard to remark. But – you know – more police on the streets isn’t going to be the panacea – it’s not going to be the panacea for all the problems we have with antisocial behaviour – across this country, let alone the terrorist – the threat we face by – but I certainly think that it, combined with greater intelligence gathering is the way forward rather than a legislative approach. Page 43 of 55 ED: Do you think that intelligence can be gathered without restricting on human rights, for example the use of phone tapping, the use of CCTV? JH: Well I think that goes back to the point I made earlier – you know, that would be a restriction on your human rights the same way if you are committed of a serious enough crime to go to prison, you’re incarcerated, you’re not at liberty – that’s a curtailment of your human rights but only where there’s been due judicial process involved – and I go back to the earlier point I made – so long as there’s – the is, I think, a judge involved in granting the right of surveillance because it can be demonstrated that it is, that this person is a serious and credible threat, I think we need to be relaxed about that. The difference is – giving the intelligence services and the police carte blanche to do whatever they want – that’s when we’ve got to be worried. ED: Do you think there could be any international reconciliation of the terrorist threat, or is it now always going to be a matter of prevention rather than reconciliation? JH: I think it’s not going to be easy but then I suppose you have to look at the past experience of those – organisations that have been characterised as terrorist. A couple of those we spoke about – we look at the IRA, the coalition with their political wing, the provisional Sinn Féin – they were involved in discussions, talks, you had to sit down and talk to these people. The ANC – characterised, again I think unfairly but characterised as a terrorist organisation by many, certainly by the apartheid regime, you know eventually they had to be involved in talks. So – unpalatable as it may seem to some people, at some point we are going to have to sit down to – with Al Qaeda operatives at a fairly senior level and – see if we can move forward in that fashion. Page 44 of 55 ED: Do you think there are, then, political aims that they are looking for, as opposed to destruction and religious fanaticism? JH: I think, clearly – religious fanaticism plays part in the – the ideological framework in which they operate but – I suppose they do have – goals that they are aiming to, they are not clearly defined but they may be too unpalatable for us to deal with but we need to sit down and find out exactly what they are and move forward with a discussion at some stage, I think – and that’s a very difficult think to have to say, a very difficult thing I think for some people to have to consider – because of the huge loss of life at the twin towers and on September the eleventh two thousand and one or the seventh of July bombings in London or the – bombings in Madrid. But – the alternative is to carry on as things stand and I think that’s even more unpalatable, frankly. ED: I think that’s an excellent note to end on, thank you very much. Page 45 of 55 Appendix 2: Interview with Frank Mulholland QC I wrote to Frank Mulholland QC, the Solicitor General for Scotland, requesting a structured interview on the subject of my area of research. He agreed to provide written answers to six specific questions, and hold an unstructured follow-up discussion, in person, regarding these questions. Due to the remit of the Solicitor General, it must be noted that the answers to each question are those of Mr Mulholland, and not the official position of the Crown Office and Procurator Fiscal Service or of the Scottish Ministers. Appendix 2.1: Written answers 1. Is the offence of terrorism necessary and justified when its actions are already covered by existing legislation? There are a number of reasons why the offence of terrorism could be regarded as necessary and just. In relation to State powers and duties, in principle, it is just for liberal democracies to defend their existence and their values, even if this defence involves some limitation of human rights. Article 17 of the European Convention on Human Rights provides that: ‘Nothing in this Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for the Convention’. Page 46 of 55 Every State has an obligation to safeguard the right to life of its citizens. The State also has a responsibility to act against political or parliamentary violence. Furthermore, Member States must ensure the enjoyment of rights and democracy (under Article 1), and also, under United Nations Instruments, States must not harbour or condone terrorism. Acts of terrorism need to also be considered from the moral stance. There is an argument relating to the illegitimacy of terrorism as a form of political expression. Even where the political cause of the terrorist is considered legitimate, the emanations of their expression are illegal. The offence of terrorism has evolved into a specialised offence, and presents difficulties in terms of policing and criminal process. It therefore requires specific intervention due to its remoteness, sophisticated structure and ability to intimidate. A specialist response is required to overcome the difficulties posed for the normal detection methods and processes within criminal justice. Finally, in response to the piecemeal legislation surrounding terrorism in the past, it could be considered just that the Government has had to introduce specific, and allencompassing legislation to ensure public safety and effective prosecution for what is often regarded as a devastating offence. This type of offence often requires an immediate and powerful response at short notice. Establishing a crime of terrorism and the relevant legislation can enable this to happen. 2. Is it just to punish more heavily for a specific motive than for the action of the crime itself? Page 47 of 55 The most important aspect of terrorism legislation is to determine the rationale for the offence, as the nature of the criminal acts involved can often lead to widespread fear and result in destabilising effects. For example, in Northern Ireland, communities have been subject to deep social and political cleavages, and economic activity has been severely damaged because of terrorism. The same can happen in the United Kingdom, for example the London City bombing in 1992 and 1993 were designed to cause a collapse in confidence (it has been said that these events were restored by an extraordinary degree of security measures e.g. the Reinsurance (Acts of Terrorism) Act 1993.). Of course it can be argued that normal crime can also have a similar effect to this, but it is likely to be less severe, premeditated, targeted or even patterned. In 1999, the Home Secretary said that ‘terrorism differs from crime motivated solely by greed in that it is directed at undermining the foundations of government. It poses special difficulties for those of us who live in liberal democracies. Our sense of outrage is all the greater because in such democracies the overwhelming majority of the population believe that there are adequate non-violent means for expressing opposition and dissent’. The question may be asked, how can groups engaged in political or parliamentary violence be said to be so different from ordinary criminal gangs as to justify such a special response? One reason is that because of the sophistication in the methods, training and transnational scale of their activities, special laws are necessary against groups engaged in political or parliamentary violence. At the same time however, Page 48 of 55 liberal democracies must adhere to limiting principles which reflect the values of individual rights, constitutionalism and democratic accountability. Furthermore, variations on criminal laws and procedures have been adapted for many crimes. For example, serious frauds and drug trafficking. Special provisions have been targeted at those who e.g. make profit from proceeds of crime. Due to the nature of this crime and its impact, criminals have been targeted by the Government in a bid to stop criminal offences where a profit can be made. Another example is where crime will have a further penalty if there is e.g. a religious aggravation to it. It is interesting to note that under Scottish criminal law there is a tendency not to focus on the motive of a crime. However with crimes such as terrorism (and those which have a religious aggravation for example) there is a focus on the motive. This perhaps shows a zero tolerance approach to such crimes, and the reason for this in connection to terrorism is because of the devastating impact and widespread fear it can, and has caused. 3. Can justice and the protection of human rights be preserved in the use of closed trials where defendants are not allowed to see the evidence against them in the interest of national security? It has been heavily debated whether or not proscription of organisations is necessary, or serves a purpose proportional to the distress and difficulty that it causes. Prior to Lord Carlile’s report of 2002-2003, the then Director of Liberty contested strongly that there should be no special criminal justice provisions targeted against politically Page 49 of 55 motivated groups and crimes, in which their result was a limitation in rights for participants in such activities. The reason that the Court of Appeal must ensure that information is not disclosed is to protect the interests of national security. Under schedule 3 of the 2000 Act, Special Advocates are appointed by the Law Officers of the Crown ‘to represent the interests of an organisation or other applicant in [the] proceedings…’. Although the Special Advocates are selected for the purposes of the legislation from advocates with special experience of public and administrative law, Lord Carlile pointed out that they do not receive formal training. Furthermore, the role of the special advocates is to represent the interests of an organisation or other applicant, but they are not responsible to that organisation or person. The special advocate can see all the closed material, but they are not allowed to disclose any part of that material to those that they are representing. Therefore they have a very difficult task of being asked by or on behalf of those whose interests they are instructed to serve to present facts or versions of events to which there is the strongest contradictory evidence, but evidence which they are not permitted to reveal in any form. A person can have their own lawyer in addition to the special advocate, however the lawyer is also excluded from closed evidence and closed sessions of Proscribed Organisations Appeal Commission (POAC). It is therefore quite apparent that the protection of human rights under this procedure is considered questionable. Organisations such as Amnesty International, and Liberty take the firm view that international and European human rights law do not permit of a jurisdiction in which an individual or organisation is not told the nature of all the evidence to be deployed Page 50 of 55 against them. Lord Carlile however points out that this approach gives rise to obvious questions regarding national security, and the need for the continuing use of material gained from hard-won intelligence in relation to alleged terrorists. It has been argued that the integrity of the system is reinforced by the independence of the advocacy professions, and that the procedural rules under which the POAC operates are reasonably clear. Finally, where an organisation’s appeal to POAC has been refused, a party to that appeal may bring a further appeal to the Court of Appeal on a question of law with the permission of the POAC or the Court of Appeal. There may also be an appeal on a question of law in connection with proceedings brought before the POAC under the Human Rights Act 1998, by virtue of sections 6(1) and 9 of the 2000 Act. Under these procedures however, the Court of Appeal must secure that information is not disclosed, contrary to the interests of national security – again the party and his representative are excluded from the appeal process. 4. Could there be any legal circumstances for the justification of suspension of certain elements of the Human Rights Act? It is not always possible to prosecute people who intelligence indicates are engaged in terrorist related activity. The Government therefore developed a range of alternative non-prosecution actions, in order to protect the public. There actions include control orders, the exclusion of foreign nationals from entering the UK, revocation of citizenship and deportation. The Government advises that these controls only affect a very small number of individuals. Therefore, although these non-prosecution methods Page 51 of 55 may be compromising certain human rights, the purpose of such a suspension is to safeguard the public from terrorism. One of the aims of the CONTEST strategy is to continue to regard the protection of human rights as central to their counter-terrorism work in the United Kingdom and overseas. However, it is accepted that the Government faces a fundamental challenge to balance measures intended for security and the right to life with the impact they will have on other human rights which form the basis of society. There are some rights where there will be absolutely no suspension or compromise. For example, the Government opposes the use of torture in all its forms. The Government has and always will condemn the practice of ‘extraordinary rendition’. The CONTEST strategy advises that UK policies will never change in relation to these matters. Control Orders were introduced by the Prevention of Terrorism Act 2005, following the decision from the House of Lords on 16 December 2004 that the provisions of the 2001 Act were incompatible with Articles 5 and 14 of the ECHR. The reason for Control Orders is that they are a means of managing the risk posed by a suspected terrorist. These orders are subject to regular and close scrutiny, including mandatory review by the High Court. The Prevention of Terrorism Act therefore makes provision for derogating control orders, which would allow for obligations which amount to a deprivation of liberty under Article 5 of the ECHR. There have been a number of challenges on ECHR Articles 5 and 6, and in some cases the Government has had to reduce the level of control imposed on certain individuals. Page 52 of 55 Whether the derogation is justified is a matter that will ultimately be decided by the Court in Strasbourg. Section 30 of the 2001 Act relates to domestic proceedings which to any extent challenge the derogation of Article 5 or the designation under s.(14)1 of the Human Rights Act 1998 which reflects that derogation. Where a derogation matter is raised, the Special Immigration Appeals Committee will be the only appropriate place for the hearings of such proceedings. 5. Can it be possible to make terrorism legislation that proscribes powers similar to emergency powers to combat a specific threat on a permanent basis? This has already been achieved under the 2000 Act. Sections 43 and 44 provide a form of emergency powers that that been permanently incorporated into the Act to combat a specific threat. This is the Police Stop and Search powers, and these powers are permanently available to any constable acting in any part of the United Kingdom. The s.44 powers allow a constable to stop and search vehicles and pedestrians for articles that could be used in connection with terrorism. It can also be used regardless of whether or not the police have reasonable grounds for suspecting the presence of any such articles. These powers however, come with safeguards in that the power can only be activated for 28 days and needs to be approved by the Home Secretary. Police forces should also consider the proportionality of their force-wide authorisations. 6. Can it be possible to ensure that terrorism legislation is being used appropriately and not used to restrict legitimate protest and freedom of speech, and if so what checks can be made to achieve this? Page 53 of 55 Due to the extraordinary nature of detention without trial under the 2000 Act, it was insisted that there were limits imposed on the duration of these powers, and an extra tier of scrutiny for these measures. The Secretary of State must appoint a person to review the operations of the 2000 Act and of Part 1 of the 2006, by virtue of s.36(1) of the Terrorism Act 2006. Lord Carlile of Berriew QC is the reviewer of the 2000 Act. The purpose of this role is to ensure that extraordinary intrusions into liberty are kept under control by subjecting them to independent scrutiny. Therefore, Lord Carlile produces the operations of the 2000 Act and produces a report on his findings each year. It is curious that Part 2 of the 2006 Act is not expressly subject to the same review, though extended detention and the proscription powers all derive from the 2000 Act and are therefore indirectly within the remit of review. Within the annual reports, Lord Carlile addresses many issues surrounding the legislation, including the possibility of the restrictions of Human Rights that it can cause. For example, in his 2007 Report, he highlights that the discretion vested in the authorities to use or not to use the special laws is a real and significant element of protection against the abuse of rights. He asks whether or not it is enough to rely on the definition of a terrorist being properly applied. Lord Carlile also says that if we are to continue to rely strongly on this discretion, it is on the basis that it is a ‘precious and key’ exercise. The use of Control Orders is subject to close scrutiny by Lord Carlile. Therefore matters like this, which could potentially be used inappropriately, are being reviewed Page 54 of 55 each year, and Lord Carlile looks at each case where a control order has been imposed, and decides whether or not it is fair to do so. On the other hand, it is important to point out that the effectiveness of the rights audit during the passage of the Anti-Terrorism, Crime and Security Bill has been doubted. This is because there was no time for a considered or sustained review. The Home Affairs Select Committee and the Joint Committee on Human Rights did produce reports at the time, but it is argued that they were based on thin evidence and debate. Furthermore, debate within the House of Commons was also curtailed due to time constrains. At the time, it was said that the Bill was compatible with Convention rights. However, the Government later conceded that derogation under Article 15 was necessary because of non-compliance with Article 5 of the procedures of detention. Although it may be considered that the legislation was made in haste and the issue of human rights, such as freedom of speech were not adequately debated, the establishment of an independent reviewer under the legislation ensures that the terrorism legislation is being used appropriately. Page 55 of 55