The London Bombings

Blair’s pre-holiday package

 

On 26 July 2005, the Prime Minister held what the Downing Street website still describes as his “final monthly press conference before the summer break” (see here).  Ten days later, on 5 August 2005, he held another press conference to announce a 12-point package of “counter-terrorism measures” (see here).  He then departed for a 3-week summer holiday as the guest of Sir Cliff Richard in Barbados. 

 

This change of plan was deemed necessary in order to give the impression of governmental activity to counter terrorism, despite the Prime Minister’s impending absence.  And, in an attempt to avoid the unwelcome impression of a Prime Minister sunning himself in the Caribbean while ordinary folk faced dangers on the Underground brought about by his foreign policy, Downing Street asked the media not to publish his holiday destination on “security” grounds.

 

(Oddly, such a request wasn’t made in previous years, even though he has told us repeatedly of late, that Britain, and therefore Britain’s Prime Minister, has been under threat from al-Qaeda for donkey’s years, long before the invasion of Iraq and even before 9/11.  Happily, while obeying the letter of Downing Street’s request, a number of tabloid newspapers published pictures of him sunning himself in the Caribbean.)

 

The measures announced by the Prime Minister were designed, he said, “to set a comprehensive framework for action in dealing with the terrorist threat in Britain” in the wake of the bombings in London a month earlier.  This begs the following obvious questions:

 

(1) Would the measures he proposed have done anything to prevent the bombings in London on 7 July?

(2)  If so, why weren’t they introduced a long time ago?

(3)  If not, what’s the point of introducing them now?

 

Needless to say, none of the assembled journalists had the intelligence to ask him these obvious questions and I have yet to hear any minister being faced with them.

 

The answer to Question (1) is almost certainly No.  As The Guardian said in an editorial the next day:

 

“Let us be clear that the most compelling objection to several of the proposals made by the prime minister yesterday is not that they intrude upon the human rights of every single resident and citizen of this country, although they certainly do that. Instead, the foremost objection is that these measures would have done nothing to stop the first and most deadly wave of suicide bombing on London's transport network on July 7.”

 

Kenneth Clarke dealt with the issue more succinctly in a speech on 1 September 2005, saying:

 

“I do not believe that the recent London bombs were the result of any deficiencies in our legal system. … Instant legislation is to be viewed with caution too. I am aware of no evidence that a bomb has gone off because of a gap in the law”

 

The measures announced by the Prime Minister take it for granted that what needs to be done to secure the British homeland is, in his own words, “to weed out extremism” in the Muslim community in Britain.

 

The Prime Minister’s statement made no mention of the elephant in the room - British foreign policy towards the Muslim world, and in particular the British invasion and occupation of Iraq along with the US.  However, under questioning later, he denied ever having said that the bombings have nothing to do with Iraq, saying that, of course, extremists would use Iraq, and other issues, to recruit and motivate people.

 

(This new spin was forced upon Blair on 19 July 2005, when it became public knowledge that the British security services shared with the British public the commonsense belief that the London bombings were not unrelated to his policy on Iraq.  See my article Blair forced to change spin for an account of how the Downing Street line shifted in the weeks after the bombings.)

 

Deporting (a few) foreign nationals

The first set of “counter-terrorism measures” announced by Blair concerned the deportation from Britain of foreign nationals who currently have rights of residence here.  This “measure” attracted most publicity at the time, and has continued to do so since.  But the practical question has rarely been asked: how does deporting a handful of “extremists” from Britain, where they are likely to be under close surveillance, make Britain a safer place, in an age of global communications?  If they are a danger to Britain when they are in Britain, will they be any less of a danger to Britain when they are abroad?   It is not obvious.  Nevertheless, of the twelve “measures” announced by Blair on 5 August 2005, this is the one that continues to attract most publicity.

 

It is a triumph for the Blair spin machine that this has happened even though the “measure” he announced is far from new.  In fact, it is a power given to the Home Secretary in the 1971 Immigration Act, which allows him to deport individuals on the grounds that their presence in the UK is deemed to be “not conducive to the public good”.  You would be hard put to deduce from the Prime Minister’s words on 5 August 2005, that the “measure” he was announcing was 34 years old.  He said:

 

“First, the Home Secretary today publishes new grounds for deportation and exclusion. Deportation is a decision taken by the Home Secretary under statute. The new grounds will include fostering hatred, advocating violence to further a person's beliefs, or justifying or validating such violence. These grounds will be subject to a short consultation period which will finish this month. Even under existing grounds, however, we are today signalling a new approach to deportation orders. Let no-one be in any doubt, the rules of the game are changing.”

 

Something new there then, isn’t there?  Well, no.  The Home Secretary’s power to expel foreign nationals from the UK has not been changed one iota by Blair’s announcement or by anything that has happened since. 

 

But what about the “new grounds for deportation and exclusion” published by the Home Secretary on the day the Prime Minister spoke?  What happened is as follows:-

 

Unacceptable behaviours

On 20 July 2005, Charles Clarke, the Home Secretary, announced to the House of Common his intention “to draw up a list of unacceptable behaviours”, the commission of which by a foreign national would leave him open to deportation.  This list was published in draft form on 5 August 2005 and, after consultation, in final form on 24 August 2005 (see Home Office press statement here).  The “unacceptable behaviours” are:

 

“Using any means or medium, including:

 

·         writing, producing, publishing or distributing material;

·         public speaking including preaching;

·         running a website; or

·         using a position of responsibility such as teacher, community or youth leader

 

to express views which:

 

·         foment, justify or glorify terrorist violence in furtherance of particular beliefs;

·         seek to provoke others to terrorist acts;

·         foment other serious criminal activity or seek to provoke others to serious criminal acts; or

·         foster hatred which might lead to inter-community violence in the UK.”

 

According to the Home Office press statement, the list is not exhaustive.

 

No new powers

In traditional New Labour style, the Home Office press statement opened with a hymn of self-praise to the Government’s energy in tackling terrorism, of which the publication of this list is but the latest significant step:

 

“The Government’s ongoing work to tackle terrorism and extremism took another step forward today as the Home Secretary, Charles Clarke, published a list of certain types of behaviours that will form the basis for excluding and deporting individuals from the UK.”

 

So, people who couldn’t be deported previously can now be deported, isn’t that correct?  Well, no – as one of the “notes for editors” tacked on to the press statement made clear:

 

“The list published today does not give the Home Secretary new powers.”

 

The Prime Minister was engaged in deception on 5 August 2005, when he announced “new grounds for deportation and exclusion”.  The exercise of drawing up a list of “unacceptable behaviours” was to give the impression of addressing an issue dear to the hearts of tabloid editors, namely, the continued presence in Britain of one or two outspoken Muslim clerics.  But, the possibility of deporting them was not increased one iota by drawing up a list of “unacceptable behaviours”.

 

Article 3 rights

The difficulty in deporting foreign nationals from the UK does not lie with the Home Secretary’s powers under the 1971 Immigration Act.  He has very wide discretion under that Act.

 

The difficulty lies in the fact that it is illegal to deport an individual to a country where he may be subject to torture and, for a small number of potential deportees, their countries of origin have a reputation for torturing prisoners.  These countries include Algeria, Jordan, Egypt, Tunisia and Morocco.  (It is possible to deport an individual to a third country, but that isn’t straightforward either, since the third country has to agree to receive him and he has to agree to go).

 

It is illegal for the UK to deport people to face torture because the UK is a signatory to the European Convention on Human Rights, and has been for over 50 years.  New Labour put the Convention into UK domestic law in the Human Rights Act 1998, so British courts can take its provisions into account (and may even rule domestic legislation incompatible with its provisions).  Since the 1998 Act came into force, an individual can seek redress in British courts for having his Convention rights infringed and doesn’t have to take a case to the European Court of Human Rights in order to so.

 

Article 3 of the Convention (entitled Prohibition of Torture) says:

 

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”

 

It is therefore contrary to Article 3 of the Convention for the UK to deport an individual to a country where he may be subject to such treatment.  This was confirmed in a unanimous judgement of the European Court of Human Rights in the case of Chahal v United Kingdom (1996) 23 EHRR 413. 

 

An individual may be held in custody prior to deportation under the Convention, even though he hasn’t been convicted of any offence, because Article 5(1)(f) allows the detention of  “a person against whom action is being taken with a view to deportation”.  However, in the Chahal case, the European Court held that an individual cannot be held indefinitely.  Chahal, who was an Indian citizen and a Sikh separatist, couldn’t be deported to India lest his Article 3 rights be infringed and he had been in custody for six and a half years.  The Court found his detention to be contrary to Article 5(1)(f) – because after six and a half years detention and no safe country in prospect for him to go to, it could no longer be said that “action was being taken with a view to deportation”.

 

Detention without trial

This state of affairs led the Government to legislate in November 2001 (in Section 23 of the Anti-terrorism, Crime and Security Act 2001) for the indefinite detention without trial of foreign nationals suspected of terrorist links, who couldn’t be deported because there wasn’t a safe country to which they could be sent.  In order to do so, the Government had to derogate from its obligations under Article 5(1)(f) of the Convention.  Over the following few years, a small number of foreign nationals (less than 20) were detained under Section 23.

 

However, in December 2004, the House of Lords found this legislation to be incompatible with Articles 5 and 14 of the European Convention on Human Rights (for details, see my article House of Lords says NO to detention without trial).   Indefinite detention without trial of these individuals had to be abandoned.  It was replaced with indefinite Control Orders without trial in the Prevention of Terrorism Act 2005 passed on 11 March 2005.  In fact, by the time the latter Act was passed, all those who had been locked up in solitary confinement under Section 23, many for years, were on bail at home with restrictions on their liberty and these conditions were maintained by Control Orders under the new Act.  Around a dozen individuals have been subject to these orders.

 

(The Prevention of Terrorism Act 2005 also allowed Control Orders to be applied without trial to British nationals.  At his press conference on 5 August 2005, Blair had promised extended use of Control Orders “for those who are British nationals and cannot be deported … any breach of which can mean imprisonment”.  This was the seventh of the twelve “measures” he announced that day.  On 13 August 2005, Charles Clarke told the Home Affairs Select Committee that one such order had been made, and “we are closely examining the possibility of doing that in relation to others”.)

 

Memoranda of Understanding

When Blair spoke on 5 August 2005, the Government had no way round the difficulty of fulfilling its Article 3 obligations to a number of individuals it wished to deport.  Some time ago, the Government had indicated that it was attempting to negotiate Memoranda of Understanding with various countries, beginning with Jordan, under which guarantees would be given about the safety of deportees.

 

On 10 August 2005, the Government announced with a great fanfare that such a Memorandum had been signed with Jordan, despite its unsavoury reputation for torturing prisoners (so much so that it is one of the countries to which the US transfers prisoners for that purpose).  The signing of this Memorandum is the only genuinely new step in the Government’s quest to deport foreigners whose presence in the UK it deems undesirable, but whether it affords significant protection to deportees is for the Courts to decide.

 

There doesn’t appear to be a copy of the Memorandum on the Home Office website (which is strange) but the BBC website has what purports to be the text of it here.  The reciprocal arrangements set out in the Memorandum apply to specific Jordanian nationals deported to Jordan from the UK (and vice versa) for whom application has been made in advance of deportation.  The Memorandum says:

 

“It is understood that the authorities of the United Kingdom and of Jordan will comply with their human rights obligations under international law regarding a person returned under this arrangement.”

 

which is probably not worth the paper it’s written on.  However, if arrested within 3 years of his deportation, a deportee is supposed to have regular access to an independent person:

 

“If the returned person is arrested, detained or imprisoned within three years of the date of his return, he will be entitled to contact, and then have prompt and regular visits from the representative of an independent body nominated jointly by the UK and Jordanian authorities. Such visits will be permitted at least once a fortnight, whether or not the returned person has been convicted, and will include the opportunity for private interviews with the returned person. The nominated body will give a report of its visits to the authorities of the sending state.”

 

This will offer deportees to Jordan some protection with regard to their Article 3 rights, but it will be up to the Courts to determine if it is sufficient to make their deportation legal.

 

The Government assures us that this is but the first of many such Memoranda: Blair said at his press conference on 5 August 2005:

 

“… we are close to getting necessary assurances from other relevant countries. For example, just yesterday I had very constructive conversations with the leaders of Algeria and Lebanon. There are around 10 such countries with whom we are seeking such assurances.”

 

However, at the time of writing, no other Memoranda have been signed.

 

Foreign nationals arrested

On 11 August 2005, shortly after the Prime Minister flew to Barbados, 10 foreign nationals were arrested and detained in maximum security prisons (see The Guardian, 12 August 2005).  The Government did not officially name them, or make public their nationalities, but according to this Guardian report, 9 of them are Algerian and another is Abu Qatada, a Jordanian, who was convicted in his absence in relation to bombings in Jordan.  Seven of them had previously been detained for up to 3 years and, since March this year, have been subject to control orders.

 

On 15 September 2005, a further 7 Algerians were detained with a view to deportation.  At least some of them were from the group of Algerians acquitted on 13 April 2005 of conspiracy to murder by plotting attacks with ricin along with Kamel Bourgass.  (Bourgass was convicted of conspiracy to commit a public nuisance with poisons and, at an earlier trial, with stabbing a policeman to death at the time of his arrest).

 

Will deportation succeed?

Will the Government succeed in deporting any or all of these foreign nationals?  That depends on the Courts in each case, initially the domestic Courts, up to and including the House of Lords, but if the latter deems the deportation of any one of them legal, the matter could be taken to the European Court of Human Rights.  The whole process will take years.  Meanwhile, the potential deportees will remain in custody, legally so because Article 5(1)(f) of the European Convention allows the detention of  “a person against whom action is being taken with a view to deportation”.

 

Theoretically, there are two legal avenues open.  First, a potential deportee could seek a judicial review of the Home Secretary’s decision to declare their presence in the UK to be “not conducive to the public good”.  This is unlikely to succeed since the Home Secretary has very wide discretion under the 1971 Immigration Act.  And there is nothing in the European Convention on Human Rights to prevent Britain taking rights of residence in the UK away from a foreign national.

 

The second avenue, which is more likely to be productive, is, of course, to argue that an individual’s Article 3 rights will be infringed by his deportation.  Plainly, the success or otherwise of this avenue will depend crucially on the degree to which the Courts regard the assurances in the Memoranda of Understanding as guaranteeing that this will not happen.  At the time of writing, only one Memorandum has been signed – with Jordan – and that is applicable to only one of the potential deportees, 17 out of 18 of whom are believed to be Algerian.

 

Without a Memorandum of Understanding with Algeria, the maximum number of deportations the Government can hope for is one.

 

Government bullying judiciary

The Government is engaged in a campaign to bully the judiciary into doing its bidding.  In this, it has been ably assisted by the Leader of the Opposition, Michael Howard.  In an article in the Daily Telegraph on 10 August 2005, he wrote:

 

“Britain faces great changes. We all have a duty to play our part in dealing with the threat of terrorism and those who foment terrorism. That includes both Government and Opposition. It should also include the judiciary.”

 

This is in tune with Blair’s assertion on 5 August 2005 that “the rules of the game are changing” and with the view frequently expressed of late that the Courts should take account of “national security” in arriving at decisions.  In particular, in deciding whether or not to deport people, “national security” issues should be weighed in the balance against possible threats to an individual’s safety in the event of his deportation.

 

Blair referred to the latter at his press conference on 5 August 2005, saying:

 

“The origin of the problem under Article 3 is the case called the Chahal Case which was actually decided in 1996 and what that Court decision said … was that even if someone was a threat to national security, if there was a substantial risk of them being subject to torture when returned to a country, then that outweighed the national security consideration, and that was absolute, and in our Courts, following that, there has been this problem with deporting people who are a threat to our national security.”

 

Blair doesn’t seem to understand, or pretends not to understand, that Article 3 rights are absolute and universal, applying equally to monsters and saints.  Their application cannot be “weighed” against consideration of “national security” or anything else, which is why a signatory to the Convention cannot derogate from its Article 3 obligations even in a “national emergency” (when, for example, it may be lawful to derogate from Article 5 rights forbidding detention without trial).  Britain cannot avoid its Article 3 obligations while it remains a signatory to the Convention, and it is not going to withdraw from the Convention.

 

Blair continued:

 

“Now in respect of British Courts we can retest it and, if necessary, we can amend the Human Rights Act and that covers the British Courts’ interpretation of the law.”

 

But, no matter how the Human Rights Act is amended, Britain’s obligations under the Convention remain unaltered as long as it remains a signatory to the Convention.  In particular, its Article 3 obligations remain unaltered, and the domestic Courts are bound to enforce those obligations.  And, if they fail to do so, a case can be taken to the European Court of Human Rights.

 

Britain out of step?

Another element in the Government’s campaign to bully the judiciary is the suggestion that Britain is out of step with other signatories to the Convention in its unwillingness to deport foreigners.  Blair said at his press conference on 5 August 2005:

 

“France and Spain, to name just two other European countries, do deport by administrative decision. The effect is often immediate and in some cases the appeal is non-suspensive, in other words it takes place outside of their country. The assurances given by the receiving nation are adequate for their Courts, and these countries are also of course subject to the European Convention on Human Rights and apply it directly in their own law.  So it is important to test this anew now in view of the changed conditions in Britain.”

 

The message to the Courts in Britain is plain: accept the assurances of the receiving countries as your counterparts in France and Spain have done – in the light of the “changed conditions in Britain” after the bombings in London.  It remains to be seen if the Courts act upon the message.  Obviously, the Courts will have to take account of any relevant Memorandum of Understanding when assessing whether an individual’s Article 3 rights would be infringed by deporting him, but it would be outrageous if an individual’s Article 3 rights were diminished by what four people unconnected with him did in London on 7 July 2005.

 

Non-suspensive appeal process

A final point on deportation: at present individuals cannot be deported until the appeals process is exhausted, up to and including a reference to the European Court.  The Government has notions of changing this to one of deport first, and appeal afterwards, that is, a so-called non-suspensive appeal process.  Blair indicated this on 5 August 2005, when he said:

 

“In any event we will consult on legislating specifically for a non-suspensive appeal process in respect of deportations.”

 

In cases where the consequence of deportation may lead to an infringement of a deportees Article 3 rights, that is an outrageous proposal.

 

Win-win strategy

It’s hard to avoid the conclusion that the Government’s display of energy on the deportation of a handful of foreign nationals, who have residence rights in the UK, is for show.

 

When asked at his press conference on 5 August 2005 how many he expected to be deported – a handful, dozens or even hundreds – Blair said “we're certainly not talking about a handful” but significantly he didn’t say “dozens”, let alone “hundreds”.  We have yet to reach two dozen – and the deportation of any of them is years away.

 

It is by no means obvious that absence from these shores will make us any safer – withdrawing British forces from Iraq is much more likely to make us safer – but trying to get rid of them plays well with tabloid editors.  And if, at the end of the day, none of them are deported, the Government can blame the judiciary – which will also play well with tabloid editors.

 

The net effect will be to put pressure on the judiciary to do the Government’s bidding on other matters.  So, as far as the Government is concerned, this is a win-win strategy.

 

Judiciary fights back

Happily there is evidence that the judiciary is fighting back.  In a speech to the Law Society on 14 September 2005, Lord Bingham, the Senior Law Lord, mounted a strong defence of judicial independence.  Here is an extract from The Guardian’s report of his speech:

 

“Lord Bingham, the senior law lord, said the suggestion that ‘the judges in some way seek to impede or frustrate the conduct of government’ was ‘a complete misunderstanding’. When judges overturned government decisions it was not because they disapproved of the decision but because it was contrary to law, he told the Law Society's conference in central London.

 

“‘The ultimate treason for any judge is to uphold as lawful that which is unlawful’, he added. No judge should have a personal agenda. Judges were simply ‘auditors of legality’”.

 

The Guardian report continued:

 

“Four appeal court judges told the Guardian this week that they felt ministers were attempting to browbeat them through the media by pointing to the courts as an obstacle in the fight against terrorism.”

 

and quoted one of the judges as saying:

 

“Judges do not need lessons on national security. But if they are prevented from mediating between the individual and the state and from ensuring that ministers act within the law, then both democracy and the rule of law will suffer.

 

“The place for government to argue its case is in the courts, not in the newspapers. The question isn't whether the judges are going to take notice of the government's arguments. Of course they will, they'll take it very seriously. The point is ... using the press to try to bring pressure to bear instead of using legal arguments I think is a very bad way to govern.”

 

There is no doubt that the Government is engaged in a campaign to bully the judiciary into doing its bidding.  And not just through the media: the Home Secretary, Charles Clarke, has been attempting to bully them face to face as well.  He revealed this in an interview with Mary Riddell in the New Statesman Special Issue of 26 September 2005, saying he had been trying to have private discussions with the Law Lords, but had been rebuffed:

 

“I have been frustrated at the inability to have general conversations of principle with the law lords . . . because of their sense of propriety. I do find that frustrating. I have never met any of them. I think there is a view that it's not appropriate to meet in terms of their integrity. I'm not sure I agree . . . and I regret that. I think some dialogue between the senior judiciary and the executive would be beneficial, and finding a channel is quite important.”

 

Commenting on this in The Guardian on 26 September 2005, Marcel Berlins wrote:

 

“Why does he want to speak to the law lords? It can only be in order to persuade them that they would be wrong to rule against the government in cases which, according to him, involved issues of national security or public safety; that judges ought to support what the government has decided and done, even if it is contrary to the law. In other words, whenever the word ‘terrorism’ is mentioned Clarke wants judges no longer to fulfil their roles as judges, no longer to be independent of the executive, no longer to dispense justice according to what the law says but on what the government advises. The very fact that the home secretary wants to speak to the judges is ample reason for their refusing to speak to him.”

 

Absolutely, correct.

 

Why did Clarke make public the refusal of the Law Lords to hold discussions with him?  The only possible reason is to portray them as an unreasonable body of people who refuse to cooperate in the Government’s crusade to make Britain safe from terrorism - and thereby put more pressure on them to conform to the Government’s wishes. This is confirmed by Clarke’s reference later in the interview to Lord Bingham’s speech to the Law Society:

 

“As far as Lord Bingham is concerned, I'm sure he's entirely proper. I was rather surprised, however, that he chose to speak to the Law Society and has not been prepared to talk to the Home Secretary about these matters. But that is a matter for his judgement.”

 

Clarke in not stupid: he knows that there is all the difference in the world between the Lord Bingham setting out in a public forum the principles on which the judiciary should operate, and him and his fellow Law Lords having private discussions with the Government about matters of law, not least since the Law Lords are likely to have to preside over, for example, deportation cases in which the Government is an interested party.

 

More on foreign nationals

Apart from cancelling the residence rights of a handful of foreign nationals, Blair also announced the Government’s intention to compile a list of “undesirable” foreign nationals who wouldn’t be let in.  He said:

 

“… the Home Office and the Foreign & Commonwealth Office are compiling an international database of those individuals whose activities or views pose a threat to Britain's security. Anyone on the database will be excluded from entry with any appeal only taking place outside the country.”

 

Given the fuss there has been in recent years about the presence of a few “undesirable” foreign nationals in the UK, it is surprising that such a list hasn’t existed for years.

 

Blair also announced that “anyone who has participated in terrorism, or has anything to do with it anywhere, will be automatically refused asylum in our country”, which, as many people have pointed out, would have excluded Nelson Mandela (not to mention members of the French resistance against German occupation).

 

Proposed changes in the law

Before Blair’s press conference on 5 August 2005, the Government had already announced that there would be a new anti-terrorism bill in the autumn.  This had been scheduled to include provisions on (a) acts preparatory to terrorism, (b) “indirect” incitement to terrorism, and (c) providing or receiving “terrorist training” (see, for example, Charles Clarke’s letter of 15 July 2005 to David Davis and Mark Oaten, the Conservative and Liberal Democrat Home Affairs spokesmen). 

 

According to Clarke, (b) and (c) are required to enable the UK to ratify the European Convention on the Prevention of Terrorism (a product of the Council of Europe, like the European Convention on Human Rights).  Proposal (a) has been around for some time, but it was given impetus by the head of the Metropolitan Police, Sir Ian Blair, following the failure to convict Kamel Bourgass, or anybody else, for a terrorist offence in the “ricin” trial, despite the expenditure of an enormous amount of police resources.  Blair (Ian) put the failure down to a lack of law (rather than a lack of ricin), telling Breakfast with Frost on BBC1 on 17 April 2005 that legislation around “acts preparatory to terrorism” was needed to deal with cases such as those involving Bourgass, as al-Qaeda operates using “very loose-knit conspiracies”.

 

On 21 July 2005, the Association of Chief Police Officers (ACPO) met the Prime Minister and published a wish list of legislation (see ACPO press statement here), including (a) to (c) plus an extension of the maximum pre-charge detention from 14 days to 3 months, which is equivalent to a six month prison sentence because of the current rules on remission.  Blair (Tony) endorsed the notion of extending pre-trial detention at his press conference on 5 August 2005 and added another offence – that of “condoning or glorifying terrorism … anywhere, not just in the United Kingdom”.  (Did he really mean “condoning”?)

 

The draft Terrorism Bill published on 15 September 2005 will, if enacted, put much of ACPO’s wish list into law and make it an offence to “glorify” terrorism.  It includes:

 

Section 1:  Encouragement of terrorism

This makes it an offence for a person to publish a statement, which could be understood to be

“a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism”.  This is normally referred to as “indirect” incitement.

 

Section 2:  Glorification of terrorism etc

This makes it an offence for a person to publish a statement, which “glorifies, exalts or celebrates the commission, preparation or instigation (whether in the past, in the future or generally) of acts of terrorism”.  However, glorifying, exalting or celebrating an event which happened over 20 years ago is not an offence unless it is on a list that the Home Secretary is authorised to draw up.

 

Happily, we will still be able to glorify the incineration of thousands of civilians in Hamburg and Dresden since it happened over 20 years ago, unless the Home Secretary puts these terrorist acts on his list.

 

Section 3:  Dissemination of terrorist publications

This makes it an offence to distribute a “terrorist publication”.  A publication is defined to be a “terrorist publication” if matter in it constitutes “a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism” or  “information of assistance in the commission or preparation of such acts”.

 

Since a great variety of arms and explosives can be used for terrorist purposes, it would appear that any documentation on arms and explosives is a “terrorist publication”, for example, all those brochures which have been distributed at the recent arms fair in London.

 

Section 4:  Preparation of terrorist acts

Under this Section, “a person commits an offence if, with the intention of (a) committing acts of terrorism, or (b) assisting another to commit such acts, he engages in any conduct in preparation for giving effect to his intention”.  That is an all-embracing offence, carrying a penalty of life imprisonment.  You can see why Sir Ian Blair is keen to have it enacted.

 

Will one get life imprisonment for reading a bomb recipe on a website, if this is enacted?

 

Section 5:  Training for terrorism

Under this Section, it is an offence to provide training in “the design, adaptation or use of any method or technique for doing anything, or assisting another to do anything which is capable of being done, for the purposes of or in connection with the commission or preparation of an act of terrorism or Convention offence”.

 

Section 6: Attendance at a place used for terrorist training

This makes it an offence for a person to be present at a place, in the UK or abroad, while “training for terrorism” as defined in Section 5 is going on.

 

3 month detention before charge

Before 9/11, the Labour Government passed an all-embracing anti-terrorism act, the Terrorism Act 2000, in which the maximum period of detention before charge was raised from 7 days to 14 days.  Section 19 of the draft bill amends the Terrorism Act 2000 to raise it again, this time to 3 months, that is, by a factor of 6.5.

 

The publication of the draft bill was accompanied by a Home Office document entitled Pre-charge detention periods, which purports to make a case for this extension, using the arguments which have been flowing from Charles Clarke’s mouth in recent weeks:

 

 

The document does not mention any cases in which the inability to detain a person for more than 14 days before being charged had resulted in him being released without charge, or not being charged with an appropriate offence.

 

And neither does the ACPO press statement of 21 July 2005, which argues for 3 months pre-charge detention as follows:

 

“The complexity and scale of current counter terrorist operations leave the current 14 day maximum detention period often insufficient. The complexities and timescales surrounding forensic examination of scenes etc merely add to the burden and immense time pressures on investigating officers. A judicially supervised process to allow detention to be authorised from 14 days up to 3 months would assist in the efficiency and preparation of evidence to sustain charging.”

 

Of course, pre-charge detention will continue to be subject to judicial oversight, and the police will have to apply to a district judge every 7 days if they wish to continue the detention of an individual.  But it is going to be a brave district judge who will turn down an extension request when told by the police that a refusal to do so will turn a dangerous terrorist out on to the street.  A Law Lord might have the courage, but not a district judge.

 

It is unlikely that ACPO will get the 3 months it wants, but it’s a pound to penny it will get 28 days.

 

Proscription of organisations

The Terrorism Act 2000 allowed the Home Secretary to proscribe organisations involved in terrorism at home or abroad.  At his press conference on 5 August 2005, Blair announced:

 

“…  we will proscribe Hizb ut-Tahrir and the successor organisation of Al Mujahiroun.”

 

In the case of Hizb ut-Tahrir, this came as a surprise to most people (including, it is said, the Home Office) because few people believed it was involved in terrorism in any way.  But, it now appears that this proposal has been put on the long finger, if not dropped altogether.

 

Asked at the Home Affairs Select Committee on 13 September 2005 if he was warned against banning these two organisations in a Home Office/Foreign Office memo, the Home Secretary replied:

 

“In the case of the organisations you are talking about here there is similarly a balance of view as to what is the best way to proceed. The way I have decided to proceed is to ask Parliament to look again at the whole basis upon which we do proscribe organisations and to take decisions in the particular cases on the basis of that consideration.”

 

So a decision about proscribing these organisations has been put off, perhaps indefinitely.

 

Blair had already announced on 5 August 2005 the Government’s intention to “examine the grounds for proscription to widen them and put forward proposals in the new legislation”.  These proposals are now in Section 17 of the draft bill, which makes provision for an organisation to be proscribed merely for “the glorification, exaltation or celebration of the commission, preparation or instigation (whether in the past, in the future or generally) of acts of terrorism”.  And there doesn’t seem to be an exception for acts that happened over 20 years ago.

 

Closure of mosques

Blair also announced at his pre-holiday press conference that the Government would consult about taking powers to close mosques and deport undesirable foreign clerics:

 

“… we will consult on a new power to order closure of a place of worship which is used as a centre for fomenting extremism, and will consult with Muslim leaders in respect of those clerics who are not British citizens to draw up a list of those not suitable to preach and who will be excluded from our country in future.”

 

There is no provision in the draft bill to allow the Government to close mosques.  But, of course, the Home Secretary already has the power to deport foreign nationals, clerics included, under the 1971 Immigration Act.

 

 

David Morrison

Labour & Trade Union Review

28 September 2005

 

 

Postscript

Since the above was written, the Home Secretary has published an amendment to the draft Terrorism Bill (see letter to David Davis and Mark Oaten here).  This deletes Section 2 of the Bill, and removes the separate offence of glorification of terrorism.