In June, the second review of terrorism acts was published by David Anderson, QC, the Independent Reviewer of Terrorism Legislation. Given the limits of his remit, he has provided a circumscribed critique. Nonetheless, the report points towards possible reform of the now well-entrenched terrorism laws.
As far as I know, this is the first report where an independent reviewer has held discussions with a wide range of organisations representing diaspora communities. For example, the Campaign Against Criminalising Communities (CAMPACC) arranged three meetings with him to talk to representatives of the Kurdish, Baloch and Tamil communities. Many organisations from the Muslim community, such as the Muslim Council of Britain, Cageprisoners and Federation of Student Islamic Societies, were also consulted. The report records the views of these communities but the media overwhelmingly failed to pay the slightest attention to them when commenting on the report.
From his conversation with the communities, Anderson infers that proscription of organisations such as the Kurdistan Workers Party (PKK-Kongra Gel), the Baluch Liberation Front (BLF) and the Tamil Tigers (LTTE) can cause ‘collateral damage’ which impinges upon the everyday life of persons who are not members of the proscribed organisation and hinders the collective life of that community. It has a ‘chilling effect’ ‘on lawful political discussion and organisation’. Where members of these communities campaign against repression and violence used on their compatriots in their homeland, they come under suspicion as supporters of terrorist organisations. A few examples of the experience of these communities are cited: Tamils found it difficult to organise public meetings because the police were unwilling to confirm to the owners of venues that the community group was a legitimate organisation; the police refused to clear the use of flags and symbols that could be used in demonstrations; Kurds were subject to overt surveillance visits at home.
Furthermore, he says, being condemned by the UK as a terrorist organisation can have a ‘propaganda value’, domestically and internationally, for other governments which seek to repress (by violent and unsavoury means of their own) the organisation in question or the population that it claims to represent. For example, the Pakistani government’s military reprisals against Baluch ‘terrorists’ used the ban on BLF in UK as a justification. Sometimes, he discerns, the proscribing of such organisations is justified chiefly as a useful and inexpensive foreign policy tool. It may be aimed at securing influence with the government of a country in which the organisation is active, or at demonstrating the UK’s solidarity with an important ally. He is concerned that, as presently drafted, the definition of terrorism is so broad as to criminalise certain acts of violent rebellion against oppressive governments which are lawful hostilities under international humanitarian law.
Creating statutory criteria for banning organisations
Anderson also recommends that the current discretion in proscribing organisations should be replaced by stringent statutory tests. On the question of banning groups believed to constitute a terrorist risk, he suggests: ‘If there are far-right terrorist organisations in the UK that meet the statutory requirement for proscription, their possible proscription should be considered according to the same discretionary criteria as have been applied to UK organisations concerned in al Qaida-related terrorism.’ He recommends that any ban should expire after a two year period leaving the onus on the Home Secretary to seek the assent of Parliament to reproscribe – by demonstrating that the statutory criteria are met. This would be welcome by many organisations as applications for de-proscription are beyond their means and have rarely succeeded.
Review of schedule 7 powers
The other area where improved controls might be needed, Anderson says, is regarding stopping and the examination of travellers without specific intelligence, and detention for up to nine hours. Most of the Muslims participating in focus groups felt that they were being targeted as Muslims, and that the questions were being used to build up profiles and to gather information in general about Muslim communities. Negative experiences included repeated stops; stress caused to the person stopped and to those travelling with them, as they worry about missing flights or losing baggage; the seizure of mobile phones and credit cards; intrusive and clumsy questioning about religious beliefs and community activities. Port officers, reports Anderson, said they needed better advance information in passenger manifests, but also swifter removal of names from the Home Office warning index, to prevent ‘unjustified repeat stops which can be particularly damaging to community relations’. He calls for a public consultation and review of schedule 7 powers after release. During such a review, people who oppose these powers would be encouraged to lodge complaints for independent adjudication – (something which would be welcomed by communities who have been most affected by these coercive powers).
Detention of suspects
On the detention of terror suspects, Anderson recommends that consideration should be given to changing the law so as to allow those arrested under section 41 of the Terrorism Act 2000 to apply for bail. He explains that every year a significant proportion of those arrested are charged with offences, ranging from conspiracy to murder to possession of knives, under ordinary criminal law. These ‘peripheral players’, who pose no risk to public safety, need not be kept in detention. Recalling his concerns about the supposed plot to kill the Pope during his visit to London in 2010, he warns, in the run-up to the Olympics, that it is not acceptable for counter-terrorism powers to be used for purposes other than those for which they are granted.
Despite the orchestrated campaign against the European Court of Human Rights by right-wing politicians and tabloids, Anderson praises the courts in London and Strasbourg for some crucial interventions, notably in helping to end the old systems of detention without trial, reform of stop and search powers, and in improving the operation of the closed material procedures used in Special Immigration Appeals Commission (SIAC) cases. ‘These judgments have, in a number of respects’, he writes, ‘affirmed the importance of liberty and due process, without, so far as I can judge, causing an unacceptable increase in risk. In countless lesser judgments, courts and tribunals have smoothed the rough edges of legislation and enabled it to be applied consistently with commonly accepted standards of fairness.’
He concludes that the almost incessant legislative activity of the past twelve years has left counter-terrorism law in the UK ‘bitty, messy and hard’ even for its practitioners to comprehend. Elements of it have been conceived and applied with excessive enthusiasm. And the risk posed by al Qaida related terrorism remains real but should not be overstated, Anderson warns. He calls for consolidation of the laws, and better controls at ports and airports, but also for more to be done to ‘reduce the intrusions of the law without endangering public safety’.
Since no government is likely to abandon these counter-terrorism powers, because of their political utility, the report does suggest how to ameliorate the impact of the laws on diaspora communities and establish a measure of accountability into their application.
Related links
Independent Reviewer of Terrorism Legislation
Download the report: The Terrorism Acts in 2011 here (pdf file, 860kb)
Give me liberty (with all rights of due process)
or give me death !