13. Submission from Campaign Against
Criminalising Communities (CAMPACC) Student Group to the JCHR's
inquiry into counter-terrorism policy and human rights
INTRODUCTION
There is no such thing as a risk free society.
That risk is inherent to the concept of freedom is a basic truism,
but one that seems to have been marginalised in the wake of the
atrocities that took place on 11 September 2001. If we are to
be free in any meaningful sense, we cannot have laws that impose
too stringent a limit on freedom without them being absolutely
necessary, yet this is the direction in which the post 9/11 anti-terror
legislation has taken us and which post 7/7 legislation may exacerbate.
It is important to note, that as savage as those
crimes were, they remain exactly that, crimes. Crime has always
existed, but despite this, society as a whole has understood that
civil liberties—the protection of the individual from arbitrary
government interference and coercrcion—are the mark of progression
and are too important to subsume to the danger of crime.
THE NEW
PROPOSALS
The offence of indirectly inciting terrorism
The definition of this is extremely broad, and
it is already an offence to incite or solicit another to commit
an offence.
Also, the Terrorism Act 2000 made permanent
those so-called "emergency" powers that were introduced
during the Irish troubles of the 1970s and 1980s.
The TA 2000 already gives the Government the
power to proscribe an organisation, something that they have recently
done to a number of organisations (10 October 2005). Once an organisation
has been proscribed, it becomes a criminal offence to be a member
of said organisation, and to solicit support for it. So are these
crimes really necessary?
Such broad offences may infringe upon the guarantees
set out in the European Convention on Human Rights (ECHR), such
as freedom of expression (Article 10) and freedom of assembly
(Article 11). The Convention stipulates that any restrictions
on the rights contained within have to be proportionate to the
reason that the right is being interfered with. These wide, sweeping
offences may offend this principle of proportionality, as laid
down in R v Secretary of State for the Home Department
ex parte Daly [1998].
A new crime of disseminating "terrorist publications"
This offence is extremely broad, and does not
require any intention to incite others to commit terrorist acts.
It also infringes upon an individuals freedom of expression, as
guaranteed by Article 10 ECHR, and potentially an individual's
freedom of conscience, thought and religious belief, guaranteed
by Article 9 ECHR.
It would become an offence to possess or distribute
any terrorist publication. A terrorist publication is one that
is a direct or indirect encouragement to commission acts of terrorism,
punishable by up to seven years imprisonment. The vague term of
"encouragement" is worrying, and the lack of intention
required may lead to legitimate political writings and publications
been classed as terrorist material. This potentially stifles legitimate
political debate amongst minority communities in the UK, according
to what the Government of the time declares is "permissible".
This offence is too broad, and too much emphasis is placed upon
prosecutorial discretion.
Detention without charge of terror suspects extended
from 14 days to three months
This, put plainly, is internment, which the
House of Lords in December 2004 ruled was illegal and contrary
to Article 5 ECHR, the right to liberty and security (see A
and others v Secretary of State for the Home Department
[2004] UKHL 56).
The Government already has powers in the Prevention
of Terrorism Act 2005 that allow it to impose control orders of
varying degrees of magnitude on both UK and foreign nationals
alike. These powers are controversial, but the question has to
be asked, if the police wish to hold someone for longer then the
14 day maximum currently allowed by law (and rarely used by police),
then surely an application for a control order would be preferable
then a situation where an individual may be held without charge
for three months, and then released due to lack of evidence.
Since 11 September 2001, there have been increased
reports of Islamophobia and racial discrimination against the
Muslim community. Detention of Muslim suspects for up to three
months without charge will only serve to push the Muslim community
further away from the Government and police, further damaging
community relations. The example of Northern Ireland shows that
to defeat extremism, the community itself must want rid of it.
Extending powers of detention for up to three months will be counter
productive.
The example of Northern Ireland
Internment
The policy of internment proved to be a "huge
mistake"[83],
serving only to promote terrorism and misery as Lord King, a former
attorney general responsible for overseeing internment, pondered
"How many deaths and scars and how much human tragedy flowed
from the decision to impose that system of executive action in
Northern Ireland"?[84]
Practised from 1971-75, the test for internment
without trial was proof `beyond a reasonable doubt' a far stricter
test than the proposed for PTA 2005, but one which nevertheless
resulted in many miscarriages of justice.[85]
Moreover, internment was seen as deeply damaging to relations
with nationalist republican communities who were left with the
impression that Britain was "authoritarian and unprincipled"
with the side effect of "encouraging a lot of young men to
join the ranks of the IRA".[86]
It is quite bewildering, that despite our first
hand experience of the negative results of a policy of detainment
without trial, that we are so rushed to continue. More so when
one considers that the test for internment has plummeted from
"beyond a reasonable doubt" to a mere "reasonable
suspicion". Of course, it remains to be seen how the courts
and the Home Secretary interpret this, but no doubt we face a
very serious threat of another internment disaster.
The rule of law should be objective and firm.
It is supposed to remain strong against the inconsistencies and
political tendencies of the executive and the intelligence agencies.
In removing this protection, the individual stands ready to lose
much without adequate protection from the law.
That is not to say that the executive and the
intelligence services are not filled with people of integrity.
However, historically there is much to indicate that they have
made grave mistakes that have caused much harm.
The Justification for Legislation
The governments approach has been to defend
"anti-terrorism" legislation as essentially the lesser
evil. The argument tends to take the line that the danger facing
our way of life, our values of freedom democracy and human rights,
is so great and so evil, that the government of the day, they
are entitled to defend the nation in a way that may well involve
committing evil acts ourselves. In doing so, we may well dispose
of what may have been perceived to be our fundamental principles,
but this is justified in the face of a threat that is repeatedly
described as "qualitatively different".[87]
While this approach is by no means new amongst
liberal democracies[88],
it does seem to represent a regretful step backwards in their
development. Firstly it shamelessly harnesses the power that such
terms as "evil" have on the general population. As CA
Gearty explains:
One of the primary achievements of the international
legal order has been to remove such tendentious and highly inflammatory
absolutist talk from the conduct of nation states. We do not need
to live in post-modernist times to know that evil is in the eye
of the beholder, and that unleashing "necessary evils"
on the world is a recipe for anarchy.
Talk of necessary evils abounds in parliamentary
debate on terrorism legislation. It is very much at the forefront
of our legislatures mind, but is it the right approach to be taking?
When those seen in a position of responsibility
use such language, the nation itself interprets this as a cue
to act without restraint. A quick glance at the statistics of
attacks against Muslims indicates this.
Moreover, the government's argument is essentially
an attack on the very notion of human rights as it seeks to reintroduce
the idea that national utility should govern policy and override
individual dignity. It is easy to imagine any number of scenarios
where a `greater good' may be enjoyed by the population if only
basic fundamental rights were suspended. Of course this thinking
leads to unspeakable horrors, such as the slaughter of the mentally
and physically handicapped in Nazi Germany as a necessary evil
for the sake of genetic purity.
Of course our government's actions are not nearly
as bad as this, but there reliance on the concept of necessary
evils indicates that we are embarking on a slippery slope to unspeakable
horrors. As Gearty suggests:
"limited evils quickly give way to greater
ones; roughing up becomes torture, beatings become killings, deliberate
humiliation becomes sadistic perversion. We know enough about
sociology to understand that that the road to egregious human
rights abuses invariably starts with a few limited and purportedly
efficacious darts into a qualified barbitary, that an Abu Ghraib
is bound to follow once you talk of the evil of your opponents
and suspend law."
The alternative is obvious. To simply remain
with the principles and attitudes that our legal system has produced
over centuries of reform and work. This means moving away from
the provocative language of evil and hatred that is thankfully
absent from the law in general. Instead, there is no reason why
we cannot return to the language of legality and proportionality,
to the standards of universal justice applied fairly to all.
THE ALTERNATIVE
Promoting England's Criminal Justice System
The alternative to this quagmire is obvious.
To remain with the principles and attitudes, forged over centuries
of reform and work, which have culminated in England's much respected
mainstream criminal justice system, with its adequate checks and
balances and safeguards against injustice.
As noted earlier, there is no internationally
accepted definition of terrorism. The reasoning behind this is
the belief that prohibited violence can be condemned without reference
to the motive behind the violence[89].
There is no reason why this cannot be done domestically. The criminal
law is so broad in scope as to encapsulate anything deserving
of being a crime, as a crime. Part of the reason why control orders
and Part IV of ATCSA are weak is that it attempts to seek out
and effectively punish those who are not criminals in any meaningful
sense. If they were they would be prosecuted under the one of
the "huge amount" of offences in both the criminal law
and anti-terror legislation. There is not enough evidence to do
this, so by definition, there cannot be enough evidence to deprive
them of their civil rights. To do so is an anathema to the principles
of natural justice and our legal framework.
Amendments to the law
That is not to say that there should not be
a tightening up of legislation, rather that legislation must focused
in more productive ways and particularly on improving methods
of detection that do not interfere with civil liberties. For instance,
Liberty has suggested a relaxation on the laws on intercept communications
being used as evidence, a suggestion that has received support
from both the police and the Newton committee[90].
Both have emphasised that surveillance and intelligence are the
standard way of dealing with suspicious individuals. There is
no reason why this is not sufficient for potential terrorists.
The only other argument against prosecution
in the ordinary court system is the problem of revealing the identity
of witnesses and intelligence agency methods. In such cases, where
deemed absolutely necessary, a security cleared judge could be
empowered to authorise concealing the identity of a witness and
even, in extreme situations, to build up potential cases that
would then be tried by other judges under standard criminal conditions.
If this is not enough to control the threat,
then there is an interesting alternative; to make a declaration
of war against the group alleged and treat the potential terrorists
as prisoners of war. This would at least allow us to remain within
our international obligations, whilst not corrupting our domestic
legal system. It is a possibility that has considerable support.
CONCLUSION
To my knowledge there is not one piece of hard
evidence to suggest that the new legislation would provide more
protection than would have ordinarily been provided through mainstream
law or by utilising the methods at the disposal of modern security
services. Conversely, there are volumes of scholarly work outlining
in detail the harm these measures have caused. If Al Qaeda is
indeed a sophisticated terrorist organisation, it is undoubtedly
effortless for them to get round the measures or to replace certain
individuals. Insofar as efficacy or upholding civil liberties
is concerned, both measures score very low indeed.
Moreover, we should dispel from our minds the
notion that terrorists will attack us because we are "soft
on terrorism". This simply does not make sense. Consider
nations that have the most barbaric "anti terror" legislation,
such as Israel which permit torture, collective punishment and
internment, and yet it continues to be deeply troubled by it or
take the example of the East German Government, which had files
on a quarter of the population but were unable to prevent their
own demise[91].
No terrorist has ever attacked on the basis
that the nation they challenge has the right to a fair trial or
are deemed innocent until proven guilty. The causes of terrorism
are more complex and should be dealt with in a more intelligent
way and certainly in a less harmful one. For a law to be effective,
it not only means that it must be workable, but that the very
nature of the legislation itself as disproportionate or likely
to cause harm to the innocent may well outweigh any good intended.
If civil liberties are to be sacrificed, it must be for a tangible
reason that will have meaningful results in overcoming the problems
at hand.
83 Law versus Terrorism: Can Law Win, in European
Human Rights Law Review 2005 volume 1, pp17. Back
84
Lord King of Bridgewater, former Minister of defence and Attorney
General for Northern Ireland, in Hansard column 1041. Back
85
Lord Thomas of Gresford, Hansard, column 844. Back
86
Law versus Terrorism: Can Law Win, in European Human Rights
Law Review 2005 volume 1, pp17. Back
87
For examples of why the threat is "qualitatively different"
see Charles Clarke's unevidenced assertions in the debate on PTA Back
88
The United Kingdom government used this argument for internment
in Northern Ireland and often in justifying its continued imperial
presence in nations that desired otherwise. Most strikingly however,
it was the argument used by the United States for using the atom
bomb in Japan and indeed Britain when destroying Dresden. Back
89
Warbick C, "The Principles of the European Convention on
Human Rights and the Response of States to Terrorism", European
Human Rights Law Review, 2002, 3, pp287-314 Back
90
Paragraph 6 Back
91
Paragraph 88 of the Newton Committee report Back
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