JURIST Guest Columnist Richard Edwards, Principal Lecturer in Law at the University of the West of England in Bristol, UK, says that the new Terrorism Bill presented to Parliament by the Blair government in the wake of the London bombings threatens the rule of law but promises little more security…

The United Kingdom has sadly had long experience of dealing with violent terrorism. The withdrawal from Empire has been accompanied by vicious and bloody insurgencies. In the 1970s and 1980s the Irish Troubles made British citizens and politicians painfully aware of terrorism's dangers at home.

Yet just as the problems of Northern Ireland seem to have been resolved through dialogue, a new and potentially more menacing threat has emerged in the form of Islamic terror. Although a large number of British citizens were killed on 9/11 and in the subsequent Bali bombings, Islamic terror had yet to occur within the UK prior to 2005. Some people thought that the UK itself would be safe. After all, ‘Londonistan’, as London has been recently been dubbed, was home to a large number of Islamic dissidents who operated under the so called "Covenant of Security": as a guest of the British, you don’t harm them.

On 7th July 2005 our illusions were painfully shattered. During ‘rush-hour’ that morning a small group of fanatical Muslims entered London’s Underground. Three of the party detonated bombs hidden in their rucksacks while travelling on the Tube. The fourth was prevented from boarding his intended target, and instead detonated his bomb on a packed London bus. In all fifty-two innocent people died and nearly one thousand were injured, many seriously. Quite apart from its scope, 7/7 was unlike any previous attack. All four of the terrorists were British-born Muslims, previously unknown to the police, who deliberately killed themselves with their intended targets. The terror which Israel faces on a daily basis had come to London.

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And it was not to be a unique attack. On 21/7, two weeks to the day after the first atrocity, a second group of Islamic terrorists attempted to launch a similar attack. Luckily the bombs failed to detonate, and the suspects were quickly arrested. But both attacks have, naturally enough, had significant political and legal repercussions.

Traditionally, the British legal response to terrorism has been simple. Terrorists are ordinary criminals and will be treated by the law as such. In practice over the years, however, it became difficult to maintain that position. Consequently, in 1974 when the Irish Troubles once more flared up, Parliament responded with the Prevention of Terrorism (Temporary Provisions) Act. The PTA made it an offence to belong to a proscribed organisation and contained special powers of arrest and detention. But it was viewed very much as a temporary departure from the normal standards of criminal justice, and as such it was subject to annual renewal by Parliament.

In 2000 Parliament enacted a new permanent and very comprehensive Terrorism Act that applied throughout the UK. The TA drew heavily on a report of then-Security Commissioner Lord Lloyd who had concluded that as there would be a continuing need for counter terrorism legislation for the foreseeable future, it should be placed on a permanent footing. The UK legal regime for dealing with terrorism formed by the interaction of the TA with prohibitions of the standing criminal law – such as murder and offences under the Explosive Substances Act 1883 or the Aviation and Maritime Security Act 1990 – was, in the words of the European Commissioner for Human Rights Professor Alvaro Gil-Robles, ‘amongst the toughest and most comprehensive’ in Europe.

After 9/11, however, the TA was hastily augmented by Parliament in the form of the Anti-Terrorism, Crime and Security Act 2001. The ATCSA made further provision for dealing with terrorism by dealing more thoroughly with a range of issues such as terrorist owned property, disclosure of information, weapons of mass destruction, and enhanced police powers. The Act was debated for barely three hours on the floor of the House of Commons.

Part IV of the ATCSA introduced internment for those suspected of being international terrorists. Foreign nationals whom the Home Secretary reasonably suspected of being international terrorists were placed in what was termed ‘a prison with three walls’. The detainees were free to leave the UK if they could, but otherwise they were to be held in prison. The UK government could not deport them. As without exception the detainees faced the possibility of torture or the death penalty on their return home, the UK would have breached its obligations under Article 3 of the European Convention on Human Rights had it done so. British citizens could not be detained under its provisions.

Not surprisingly, the ATCSA forced the UK to derogate from key provisions of the European Convention on Human Rights. In December 2004 the House of Lords held in A v. Secretary of State for the Home Department that section 23 of the Act was a discriminatory and disproportionate response to the threat of international terrorism. As such it was incompatible with Articles 5(1) and 14 of the ECHR. Their Lordships consequently issued a declaration to that effect under section 4 of the HRA. Lord Hoffmann differed in his reasoning from the rest of the majority, holding that there was no emergency within the terms of Article 15 to justify the measures. During the course of his speech His Lordship observed: ‘The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.’ Although a section 4 HRA declarat
ion is a non coercive order of the court, and as such does nothing to alter the legal rights of the parties to the litigation, the moral and political pressure on the government to change the law was considerable.

In response to the House of Lords ruling and after considerable debate Parliament replaced Part IV of ATCSA with a new regime of so-called "Control Orders" under the Prevention of Terrorism Act 2005. Under this legislation the Home Secretary can, subject to judicial oversight, make orders which place a wide range of restrictions on the rights and freedoms of individuals he suspects of being involved in terrorist related activities. Any individual within the UK – including British citizens – can be subject to a Control Order. Control Orders can prohibit an individual using specified articles or substances, place restrictions on his work and activities, the people he associates with, his ability to communicate with others, and his freedom of movement. A Control Order can also require that a person reside at certain place, effectively under house arrest. As the potential for Control Orders that are incompatible with Article 5 of the ECHR is clear, the PTA allows the Secretary of State to make derogations from the UK’s obligations under that treaty in such cases. Those international terrorists previous interned were made subject to Control Orders.

Thus notwithstanding its defeat in A v. Home Secretary and the replacement of internment with Control Orders the government still has at its disposal a considerable arsenal of legal powers, many of them draconian, with which to combat all forms of terrorism. Indeed, it would be most surprising if the situation were otherwise. Since 2000, three considerable Acts of Parliament have been debated at length and enacted, with the principal law, the Terrorism Act, itself having been the product of a thorough report by an eminent judge, widespread consultation and Parliamentary debate. Yet none of those powers prevented the 7/7 attacks.

Almost immediately after the events of July Prime Minister Tony Blair announced that a proposal for new and additional powers would be brought before Parliament for its consideration. In response to a reporter's about the possibility that the judiciary might follow the robust anti-governmental approach the Law Lords took in the December 2004 he commented ‘I doubt those words that you were quoting from one of those judgements would be uttered now.’ According to the Prime Minister, ‘the rules of the game had changed.’

In the aftermath of the July attacks three new issues came to the fore. The first was the ability of militant Islamic clerics resident in the UK to preach violent jihad and incite terrorism with seeming impunity. Second was the problem of ‘terror-tourists’, individuals who travel overseas to undertake terrorist training. The third was the alleged need of the police to detain suspects for up to ninety days in order to overcome the evidential difficulties associated with terrorist cases. It is to address these issues, amongst others, that the new Terrorism Bill has been drafted.

The Terrorism Bill was presented to Parliament by Home Secretary Charles Clarke on 11th October 2005. The Bill contains much that is unobjectionable and eminently sensible. For example, Clause (5) criminalising preparatory terrorist acts has long been recommended, not least of all by Lord Lloyd in his report almost ten years ago. Quite why Parliament has failed to place that offence on the statute book before is not clear. Equally sensible is Clause 9 that criminalises the possession or manufacture of a radioactive device. Given the chilling prospect that either a ‘dirty bomb' or worse a small tactical nuclear device might be used by these utterly ruthless terrorists these proposals are overdue. But while much in the Bill was greeted with approval, there are draconian provisions that have met with understandable hostility.

Clauses 1 and 2 are both sweeping and vague. Clause 1 seeks to criminalise the encouragement of terrorism, while Clause 2 prohibits the dissemination of terrorist publications. Without doubt they are badly drafted, and will if enacted inevitably be held incompatible with the Human Rights Act by the courts. Clause 1(1) will punish anyone who publishes a statement ‘that members of the public to whom the statement is or is to be published are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism.’ A terrorist act is one that falls within the scope of the broad definition of terrorism contained in Section 1 of the Terrorism Act 2000. Thus the Act will apply to not only Islamic militants who praise the 7/7 attacks but also to animal rights extremists. Clause 1(2) goes on to state that the public will be taken to have understood any statement of glorification – elsewhere defined as including any praise or celebration – of either the commission of such acts or statements that seek to persuade others to commit such acts as indirect encouragement within Clause 1(1). It is irrelevant whether the statement is understood as encouragement or indeed whether anyone is encouraged. Without doubt this Clause is intended to have a considerable ‘chilling effect’ on free speech. The expression of repellent views is enough simply to commit a serious criminal offence punishable with up to seven years in prison. On the face of the Clause it is not clear whether intent is required to commit an offence, although no doubt the courts would apply the common law principle of legality and read it in.

It is very doubtful whether this criminalisation of ‘fighting words’ is compatible with Article 10 of the ECHR. Of course the right to freedom of expression enshrined in Article 10 is not absolute and may be limited in accordance with the provisions of the Article 10(2). Clause 1 would not withstand scrutiny under Article 10(2). While the provision undoubtedly has a legitimate aim, namely the ‘for the prevention of disorder or crime’, it cannot be said to be ‘necessary in a democratic society.’ The type of speech that falls to be criminalised under Clause 1 will most often be political speech, albeit with a message that many find insulting. But freedom of expression under Article 10 encompasses views which are not only ‘favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.’ Moreover, political speech lies at the core of the Article 10 guarantee and any restrictions on it must be subject to the strictest scrutiny. And even ‘fighting words’ enjoy constitutional protection.

That is the nub of the issue. There is a difference between advocacy of repellent views on the one hand and the incitement to immediate violence on the other. In Brandenburg v. Ohio the Supreme Court of the United States concluded that the Constitution did ‘not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’ The Terrorism Bill fails to make that important distinction. There is no temporal dimension at all. The fear of violence need not be imminent. Clause 1 is thus overbroad in that it will penalise speech which should enjoy constitutional protection. And for that reason alone fails to impair the right of freedom of expression as little as possible and is thus disproportionate. This might strike some as an odd conclusion. The speech that Clause 1 is directed at is a danger it might be a
rgued, especially in light of 7/7. However, the only circumstances when the advocacy of the ideas which fall within the scope of Clause could ever be justified is, as Rawls observed, when there is a crisis which threatens the very foundations of the democratic order, or to put in the terms of the ECHR ‘the life of the nation.’ Yet there is no constitutional crisis that prevents either democracy operating effectively in the UK or debate and discussion challenging the views of extremists. Just as the American anti-Syndicalist Statutes proved ineffective at preventing the propagating of ideas that supported a Communist revolution so will this with respect to the establishment of an Islamic Caliphate by violent means.

It must also be said that a limit on free speech can only be one that is ‘prescribed by law’. The concept of ‘glorification’ relied on by Clause 1 is arguably too vague and imprecise to meet the requirements of that criterion. Clause 1 is not drafted with sufficient precision to enable a citizen to regulate his conduct effectively. Equally, Clause 1 is liable to operate in an arbitrary manner. Individuals who call for the use of armed resistance against despotic regimes such as the old Bath Party in Iraq or the military dictatorship in Burma are unlikely to be treated in same way as an Islamic ‘militant’. That no doubt is the intention. Yet all concerned will fall within the scope of Clause 1. This opens up the potential for the operation of the law to appear one sided and aimed at a particular community. The very community whose help we most need.

Finally, with respect to Clause 1 it may be argued with conviction that there is little need for such a law, as existing law already covers the field of incitement well. It has long been an offence at common law to incite others to commit crimes. When used in conjunction with the Terrorism Act 2000 the law is already strong enough to deal with those who espouse support for terrorists. Moreover, in 2003 in The Queen v. EL-Faisal a defendant was convicted of soliciting murder contrary to section 4 of the Offences Against the Person Act 1861 and of using threatening, abusive or insulting words or behaviour with intent to stir up racial hatred contrary to s.18(1) of the Public Order Act 1986. In practice, prosecutions under this provision are more likely to strengthen the position of Islamic militants. Those prosecuted are likely to be lauded by their supporters. Moreover, prosecutions will provide the cause of radical Islam with the oxygen of publicity. Few within the UK had heard of the Omar Bakri Mohammed before 7/7. But following the widespread coverage of the man and his views since then we can be certain that many more people, including impressionable Muslims, know who he is.

Similarly problematic is Clause 2. Clause 2 makes it an offence to disseminate terrorist publications, although this too is arguably already covered by existing law. Many of the vices that apply to Clause 1 apply again here. The offence is so broadly framed that a university academic is likely to be caught by its application. Assume for the sake of argument that the "University of Penzance" has an Islamic Studies Centre. Within the department are all shades of Islamic opinion, including those sympathetic to the Palestinian Intifada. Now imagine that person lends to a Muslim student Sayyid Qutb’s Signposts on the Road with the recommendation that this is a ‘seminal text which he should read …it will lead to a better understanding of the situation.’ A concerned parent subsequently contacts the police. Qutb’s tract provides the ideological bedrock for Al-Qaeda. Familiarity with this tract is vital for anyone wishing to understand the problem of militant Islam, just as a reading of Lenin’s What is to be Done? assists in understanding the Communist mindset. Although Qutb did not advocate the use of violence directly in his tract the implication is nevertheless clearly there. On the face of Clause 2 the Penzance academic could be guilty of an offence. To be acquitted at trial he will need to make out one of the defences that the Clause provides. If he was on record, as some British Parliamentarians are, that suicide bombings in Israel were ‘understandable’ and that Qutb was ‘a great Islamic scholar’, then it is unlikely he would be acquitted. In essence the overbroad Clause 2 represents the worst sort of thought control worthy of a police state. In fact, it is likely to be largely ineffective in combating the dissemination of terrorist views, even when coupled with Clause 3 that attempts to extend the scope of the offences in Clause 1 and 2 to the Internet. As even someone with an elementary knowledge of the Internet knows once information is posted, particularly in newsgroups, it is virtually impossible to delete. For the determined copies of the Anarchists Cookbook, the Encyclopaedia of Jihad and Al Qaeda’s notorious ‘The Sword’ website replete with its own virtual training camp will no doubt continue to be available, hosted beyond the reach of British law enforcement. The Bill might grant the police power to censor Internet publications on pain of punishment under Clauses 1 or 2, but ‘hard core’ terrorist publications are unlikely to be caught by it. Indeed, this Bill is unlikely to have much impact on what is arguably the most important theatre of operations in the War against Terror. As such it represents a missed opportunity.

Yet another problematic provision is Clause 8, making it an offence to attend any place used for the purposes of terrorist training. This clause is directed at preventing ‘terror tourism’ where young radical Muslims travel to terror ‘boot camps’ for basic training and further indoctrination. The old Al-Qaeda camps in Afghanistan are perhaps the best example of this, although there is some evidence that members of the 7/7 cell travelled to Pakistan for such training in new camps operating in the ‘bandit country’ of the Hindu Kush. Criminalising such travel is sensible, although it is clearly an after the event measure. Several thousand young men travelled to these camps and received training before returning home to lie dormant amongst us. Their actions cannot be criminalised without offending the prohibition on ex post facto criminality contained in Article 7 ECHR. Nevertheless Clause 8 is problematic. Travel knowingly to a terrorist camp for whatever reason, whether or not to receive terrorist training, and you commit an offence. As framed, Clause 8 would catch an investigative journalist interviewing Osama bin Laden in his training camp or reporting on such camps. The media are of course the eyes and ears of the public. This, as the Court of Appeal observed recently in King v. Telegraph Group Ltd., ‘is of especial importance in the "war against terrorism" where in a free society fearless reporting has often exposed information which it has been in the public interest to expose.’ Clearly there is a strong case for amending Clause 8 to provide protection for journalists.

Probably the most contentious part of the Bill is the proposed power to detain those suspected of terrorist offences for up to three months before charging them. As a concession to due process the Bill envisages periodic reviews by a District judge on the continuing necessity of the detention. The proposed Clauses 23 and 24 are a direct result of a request from the Police. The Police claim, not unreasonably, that the investigation of terrorist crime is complex and time consuming. The fourteen day period the law currently allows is ‘often insufficient.’

Under English law an individual accused of rape or murder can be held for a maximum of four days before they must be charged or released. This period is subject to continuing review, initially by a senior police office and then by a District judge.
With respect to terrorist offences the period has been progressively extended. The TA initially allowed suspects to be detained for up to seven days. In 2003 this was extended to fourteen days after similar arguments from the police, and despite misgivings. It is worth pausing at this point to consider how the TA, including the extended period, has been used. As of September 2005 no suspect had been detained for the full fourteen days, although two had been held for thirteen. Moreover, of the eight hundred and ninety five people arrested under the TA since 2001, twenty three were charged under the Act, three hundred under with other non-terrorist offences and four hundred and ninety six were released without charge. In other words, over half the people arrested under the TA proved to be innocent. But if the Bill becomes law then all suspected of terrorist offences face the possibility of up to three months detention while the police investigate their case. To put this into context, three months detention is the equivalent of being sentenced to six months imprisonment under English law.

The right to liberty has long been an important part of the English/British constitution. Eight hundred years ago Magna Carta declared that ‘to no man will we deny or delay justice or right.’ Coupled with the writ of Habeas Corpus the principle it contains became the bedrock of English liberty. Today that principle finds statutory expression in Article 5 of the ECHR. Indeed, Article 5 is little more than a summary of the common law principles of liberty developed down the ages by the English judiciary. There can be no doubting its importance in a free and democratic society: It is a right that lies at its very heart, guaranteeing the rule of law. ‘Freedom from arbitrary arrest and detention,’ is as Lord Hoffmann observed in A, ‘a quintessentially British liberty.’ Article 5(3) guarantees that everyone arrested on suspicion of an offence ‘shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.’ Article 5(3) is intended to place limits on the period that an individual can be held before his detention is subject to judicial control in order to determine whether he should be charged or released. The European Court has held that four days is the maximum. The three-month period proposed by the Bill is thus a significant departure from both English law and the ECHR. Undoubtedly, it is incompatible with Article 5 ECHR. The effect of this Bill is such that an individual arrested on suspicion of having committed terrorist offences enjoys a lower level of legal protection than an individual accused of war crimes or crimes against humanity before the International Criminal Court. Therefore, the proposed period will no doubt be subject to derogation under Article 15. To pass muster under Article 15 the Clauses will need to be ‘strictly required by the exigencies of the situation’ (I assume for the purposes of this argument that there is an emergency threatening the life of the nation; like Lord Hoffmann I am not convinced).

In themselves the justifications for extending the period are not convincing. One can readily accept that the police have real problems with the logistics of the evidence in these cases. But that is an argument for much greater resources to be put into policing by the Government, and not for the curtailment of an important liberty. Equally, it has become accepted that it is not possible to question a suspect after he has been charged. This is simply not the true position of English law. It is certainly the case that inferences can no longer be drawn from the accused’s silence post charge in relation to that charge. But there is plenty of scope for a ‘holding charge’ while the police investigate other possible offences. Detention for such extended periods is also likely to produce unreliable evidence, particularly confessions. Bitter experience has taught us induced confessions lead to miscarriages of justice. Yet we plan to detain individuals for up to three months. It can only be a matter of time before someone who is psychologically suggestible confesses to a crime to escape their legal limbo. For a nation whose criminal justice system was rocked by a series of high profile miscarriages of justice only quite recently this is remarkable. The irony here is that a government which was adamantly opposed to internment in the context of Irish terrorism has since 9/11 enthusiastically adopted it. The lawfulness of the derogation for the ninety-day period will in all probability turn on the nature of the judicial supervision. If the control is in practice theoretical then it is likely to fall foul of Article 5, as arguably it is. Judicial oversight of the continuing need for detention is not the sort of hearing contemplated in Article 5(3) of the ECHR. The District judge is concerned with the ability of the police to gather further evidence and not the legality of the detention. The initial reasonable suspicion that the arrestee had committed an offence decays with time. For the detention to continue there must be other relevant and sufficient reasons for continuing the detention. The period of pre-charge detention is intended to be as short as possible. Article 5 contains a presumption in favour of liberty. Article 5(3) requires that an individual be charged and then given a trial within a reasonable time or bailed. The hearing contemplated by Article 5(3) is one which determines whether there is a charge to answer and not whether the police need more time to gather evidence. As the European Court of Human Rights has ruled ‘the requirements of the investigation cannot absolve the authorities from the obligation to bring any person arrested in accordance with Article 5(1)(c) "promptly" before a judge, as required by Article 5(3).’

Reconciling the tension between freedom and security is difficult. On the one hand every state has an obligation to protect the security of its citizens. But on the other hand the state cannot adopt such draconian measures that in effect democracy is hollowed out. As the European Court concluded in 1978 in Klass v. Germany, there is an inherent danger with security laws. Such laws can undermine or destroy democracy while purporting to defend it. And as the court warned, ‘Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate.’ In 2002 the Council of Europe issued specific guidelines to its member states on how terrorism should be tackled. Principle two states that ‘all measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision.’ As it currently stands the UK’s Terrorism Bill fails to meet this standard. This vague Bill proposes to ride roughshod over human rights and run counter to the rule of law while promising little or no security benefit in return.

Richard Edwards is Principal Lecturer in Law at the University of the West of England in Bristol, UK, where he teaches European Human Rights.
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