Anti-terrorism bill: MPs aren’t revolting

MPs are not really battling against David Blunkett's anti-terrorism law - but they should be.

Jennie Bristow

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One week after UK home secretary David Blunkett dismissed civil liberties and those who fight for them as ‘airy fairy’, now, it seems, he is facing some revolting libertarians within his own ranks.

On Monday 19 November, the House of Commons home affairs select committee – made up of 11 MPs, seven of whom are Labour, and chaired by former minister Chris Mullin – released its first report on the Anti-Terrorism, Crime and Security Bill (1). This is the bill that David Blunkett dreamt up in the wake of 11 September and which he is attempting to fast track through parliament.

The report gave rise to headlines like the BBC’s ‘MPs battle over anti-terror bill’ (2), or Guardian Unlimited’s ‘Mullin brands anti-terror bill “gesture politics”’ (3). This article quoted Mullin as saying that his ‘principle reservations’ about the extension of the law of incitement to include religious as well as racial hatred were ‘the difficulty of making it work – that it is really possibly more gesture politics than it is substantial – and also that I suspect some of the first people against whom it may be used are Muslims’.

But while all criticisms of this new anti-terrorism bill are welcome, civil libertarians should not get too excited about the depth of the opposition to the home secretary’s proposals. While the select committee has added a cautionary footnote to some of Blunkett’s worst excesses, it seems to have fallen hook, line and sinker for the spirit of his new law. And in some cases, the things it proposes to improve the anti-terrorism bill seem even more worrying than the original.

The report starts off well enough, with a reminder about Britain’s less-than-proud legacy of anti-terrorism legislation that is worth quoting in full:

‘This country has more anti-terrorist legislation on its statute books than almost any other developed democracy. Much of it, rushed through in the wake of previous atrocities, proved ineffective and in some cases counter-productive and needed to be amended. Often it was supposed to be temporary and turned out to be permanent. It, therefore, behoves us to examine carefully the latest proposals in the wake of the atrocity on September 11.’

Given this rather damning indictment of post-atrocity anti-terrorism laws, one might suppose that the correct response to any such laws that are proposed now would need to be nothing more than, ‘Just say no!’

Unfortunately, Mullin’s select committee report immediately says why, in fact, 11 September warrants another such piece of legislation. ‘At the outset, let it be said that many of the measures proposed in the Bill are obviously justified and ought not to be controversial’, it states. The report goes on to explain that ‘we make no claim to have conducted a detailed review of the bill’s 125 clauses and eight schedules in 114 pages’ – only to ‘highlight what seem to us the most important and controversial measures, to lay out the arguments for and against and to reach a tentative conclusions’ [sic]. And crucially, the committee concedes that ‘The events of 11 September brought a wholly new dimension to terrorism and it is inevitable that they have prompted a major review of the powers available to those charged with countering the terrorist threat’.

In the first half of the first page of the introduction to Chris Mullin’s report, then, it is clear that this is no libertarian rebellion. Rather, it reads more like a set of in-house Home Office guidelines designed to take the edge off a couple of controversial aspects of the legislation.

A recurrent demand throughout the report is that, whatever laws are brought in as a consequence of 11 September, ‘the response should be a considered one’. ‘We question whether it is appropriate for this bill to be passed through the House of Commons in exactly two weeks with only three days of debate on the floor of the House’, states the select committee. ‘A bill of this length…with major implications for civil liberties should not be passed by the House in such a short period and with so little time for detailed examination in committee.’ Yet before this much-reported cautionary counsel, the report’s authors have already stated that ‘we are grateful that the government has resisted the temptation to rush through new measures in the immediate aftermath’.

This sends out two messages – neither of which is particularly comforting. Message No 1: the problem isn’t the content of the bill, so much as the speed with which it is going through. Message No 2: and anyway, it’s not going through that fast.

On the specifics of the bill, the select committee devotes most of its attention to clauses 21 to 23, which would allow for the indefinite detention of suspected international terrorists. This is the clause that requires derogation from Article 5 of the Human Rights Act (the right to liberty). This has caused the most consternation amongst civil liberties organisations.

It is rather bizarre for a government at one moment to accept the concept of universal human rights, and at the next to introduce a law such as this. This new law would makes immigrants subject to detention without trial for non-immigration purposes. (Those whom the authorities deem to be illegal aliens can already be detained pending deportation, but even they have been allowed an appeal to the law.) John Wadham, director of the campaign group Liberty, told the select committee, ‘it seems to me we are suggesting that somehow people who just do not happen to have obtained British citizenship have fundamentally fewer rights than others’. But this is, in fact, true in law – and it is what makes a nonsense of the Human Rights Act. This Act is not based on a set of universal principles, as is often assumed; but rather on a set of guidelines which give great scope for discretionary interpretation and application by the European Court of Human Rights, and by member governments and their judiciaries.

But when the select committee takes this contradiction on board, the most it can come up with is sympathy for a government facing an ‘intractable problem’ and a ‘fundamental dilemma’. ‘What does it do with a suspected terrorist if it cannot remove him (or extradite him) to another country – because to do so would breach Article 3 [the prohibition of torture] – and it cannot prosecute him in this country – because there is insufficient evidence to secure a conviction?’, it wonders.

One could suggest that, if there is not enough evidence to prosecute a suspected terrorist, it might mean that the law should not assume he is a terrorist, and that he should therefore be left alone. The select committee, however, swings the other way, concluding: ‘We reluctantly accept that there may be a small category of persons who are suspected international terrorists who cannot be prosecuted, extradited or deported and therefore will have to be detained.’

The trouble with detention, as the committee recognises, is that ‘the quality of the intelligence information’ on which people have previously been suspected of international terrorism is pretty shoddy. ‘We note that in 1991, some 176 Iraqis and other Arabs were detained during the Gulf War,’ states the report. ‘We understand that many of those, if not all, were eventually released without charge and some were subsequently awarded compensation.’ The solution? Again, one could reasonably argue that the government should stop locking up people proving guilty of nothing. But the select committee prefers to offer a more thorough-going change in the law.

‘[I]n some cases, prosecutions do not proceed because certain types of intelligence, such as telephone intercepts, cannot be admitted in court’, states the report. ‘We believe that within the law enforcement community there is a variety of views on whether such evidence should be used in court. We suggest that the government conduct a review of the law and procedure relating to the admissibility of intercept evidence in court, with a view to extending the circumstances in which such evidence could be admitted’.

So – as a remedy to one kind of injustice (detention without trial), the select committee proposes the more swingeing injustice of allowing the courts to convict people on the basis of evidence gained through entrapment and spying. With enemies like these, Blunkett doesn’t need friends.

Having put all this brain-power into the ‘intractable problem’ of indefinite detention, the select committee spends relatively little time on ‘other measures’ proposed by the anti-terrorism bill. One is clause 38: the proposal to extend the crime of incitement to racial hatred to include incitement to religious hatred, and to increase the maximum penalty for such offences from two to seven years’ imprisonment. Clause 38, notes the report, ‘defines “religious hatred” as “hatred against a group of persons defined by reference to religious belief or lack of religious belief”. However, no definition of “religious belief” or religion is provided.’

On the basis of this hazy definition, combined with a concern that ‘the proposals in the bill would be difficult to enforce’ and fears about the possible use of this law to target Muslims, the select committee states: ‘We therefore see no reason for this measure to be included in this emergency terrorism bill’. The select committee’s opposition to this clause is welcome – although, as I have argued before on spiked, the problem is not one of definition or difficulty to enforce, but that it represents a grave attack on free speech, and a further step in the creation of thought crime (‘Religious hate’ should not be a crime).

As it goes, the government might already be looking for a way out on this particular proposal: having already riled its cherished comedian community, and upset Muslims, for whose benefit the new law was originally presented. But no matter: anything that stops the spread of this pernicious hate crime law must be to the good.

Unfortunately, the select committee does not raise even a definitional question in relation to the proposal to create a new offence for hoaxes and ‘threats involving noxious substances’ – meaning that ‘a person would be guilty of an offence if they placed, sent or communicated false information about any substance or article intending to make others believe that it was likely to be a noxious substance which could endanger human life or health’. There is a big difference between a bomb threat – which is pretty clear-cut and already subject to criminal punishment – and the woollier ‘threats involving noxious substances’. Blunkett’s original plan was to apply this law retrospectively, to any hoax made on or after midnight, 20 to 21 October 2001 – an unprecedented legal move. This plan has now been dropped – a fact welcomed by the select committee and other libertarians.

The select committee raises some concerns about the way the anti-terrorism bill allows for the expanded role of Europe in UK criminal justice. In clause 109, the Bill contains broad powers to make statutory instruments, ‘implementing EU measures in the area of justice and home affairs’; and the provision within the bill ‘could be used to enact, by secondary legislation, any measure agreed under the Third Pillar [of the Treaty of the EU], regardless of whether or not such measures had relevance to the fight against terrorism’.

In other words, this anti-terrorism bill would allow criminal justice measures decided within the unaccountable framework of Brussels to pass into UK law by ministerial order, without the need for a debate in the UK parliament. The select committee views this broad power ‘with concern’. Indeed it should – criminal justice laws have the most immediate impact on civil liberties. To allow such laws to be passed from on high, without debate, would be a fast-track route to unfreedom sans frontiers.

But it might still be that way, even taking the select committee’s comments into account. Its proposal is not to prevent the UK from incorporating EU criminal justice measures, but rather that ‘the power to do so in this bill should be confined to EU measures contained in the proposed Framework Decision on combatting terrorism’. As Bruno Waterfield has usefully detailed on epolitix, these specific EU measures are stringent already – including the proposal for a European arrest warrant, which could be based on a list of 29 offences ‘including terrorism-linked activities, membership of a criminal organisation, human trafficking, murder, rape and other serious offences which presently must be dealt with extradition requests through domestic courts’ (4).

Clause 109 seems likely to be controversial, not only within the UK but also within other EU member states. When it is proposed that the EU’s role is expanded to this extent, the anti-democratic elements of this framework become clearer – as does its usefulness for government ministers who wish to curb debate of controversial measures. We will see, in December, what actually gets approved by the EU. But already, the willingness of governments like that in the UK to hand over debates about liberty and its limits to the unaccountable institutions of the EU should set the alarm bells ringing.

What will be the upshot of all this? Whatever happens with Blunkett’s Bill, it seems unlikely that thousands of immigrants will be indefinitely detained, that hundreds of Muslims or Christians will be locked up for religious hate crimes, that people will be arrested willy-nilly while on holiday in the Dordogne. The government does not have the nerve to do this, even if it wanted to. But the spirit of the thing – that yet more anti-terrorism laws are justified, and that Europe-wide laws of this nature are sensible – is far from being crushed. And with this, the possibility of freedom seems more ‘airy fairy’ than ever.

Read on:

spiked-issue: After 11 September

spiked-issue: Free speech

(1) Home Affairs Select Committee First Report on the Anti-Terrorism, Crime and Security Bill 2001

(2) BBC News Online, 19 November 2001

(3) Mullin brands anti-terror bill ‘gesture politics’, Guardian Unlimited, 19 November 2001

(4) EU anti-terror measures set for UK opposition, epolitix, 16 November 2001

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