Joint Committee On Human Rights Written Evidence

13.  Submission from Campaign Against Criminalising Communities (CAMPACC) Student Group to the JCHR's inquiry into counter-terrorism policy and human rights


  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 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


  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.


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.


  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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