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
(Oddly, such a request wasn’t made
in previous years, even though he has told us repeatedly of late, that
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
(1) Would the measures he proposed
have done anything to prevent the bombings in
(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
Kenneth Clarke dealt with
the issue more succinctly in a speech on
“I do not believe that
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
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
(This new spin was forced upon Blair
Deporting (a few) foreign nationals
The first set of “counter-terrorism
measures” announced by Blair concerned the deportation from
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
“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
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:-
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
“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
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
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
Article 3 rights
The difficulty in deporting foreign
nationals from the
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
It is illegal for the
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
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
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.
(The Prevention of Terrorism Act 2005 also allowed
Control Orders to be applied without trial to British nationals. At his press conference on
Memoranda of Understanding
When Blair spoke on
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
“It is understood that
the authorities of the
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
This will offer deportees to
The Government assures us that this
is but the first of many such Memoranda: Blair said at his press conference on
are close to getting necessary assurances from other relevant countries. For
example, just yesterday I had very constructive conversations with the leaders
However, at the time of writing, no other Memoranda have been signed.
Foreign nationals arrested
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
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
Without a Memorandum of
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
This is in tune with Blair’s
Blair referred to the latter at his
press conference on
“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).
“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,
Another element in the
Government’s campaign to bully the judiciary is the suggestion that
The message to the Courts
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
“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.
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
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
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
there is evidence that the judiciary is fighting back. In a speech to the Law Society on
“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
“‘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
“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
“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.”
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
“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
fuss there has been in recent years about the presence of a few “undesirable”
foreign nationals in the
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
According to Clarke, (b)
and (c) are required to enable the
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
The draft Terrorism Bill
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.
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
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
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?
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
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
“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
Terrorism Act 2000 allowed the Home Secretary to proscribe organisations
involved in terrorism at home or abroad.
At his press conference on
“… 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.
at the Home Affairs Select Committee on
“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.
had already announced on
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.
Labour & Trade Union Review
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.