On the evening on 9 November 2005, the British government led by Tony Blair lost a vote in the House of Commons on a key component of the Terrorism Bill it is attempting to pass through parliament in the wake of the London bombs on 7 July. Despite strong pressure on members of parliament from the ruling Labour party (which has a majority of sixty-six in the chamber), the decisive vote was 322-291 against the measure to allow police to detain a person suspected of terrorism-related offences for up to ninety days without being charged.
The Westminster village the British equivalent of the Washington beltway is full of froth and noise about the result, which it sees as a major blow to the authority of the prime minister. This may be true, but far more important is what the new Terrorism Bill as a whole implies for the balance between security and liberty in a country that still proudly boasts of being one of the worlds oldest democracies.
In this article, we seek to draw public attention to some of these implications in the interest of a wider public discussion about how best democratic societies can cope with real and perceived security threats.
This article is adapted and updated from Stuart Weir & Andrew Blicks Democratic Audit Scoping Report, The Rules of the Game: the governments counter terrorism laws and strategy for the Joseph Rowntree Reform Trust (November 2005)
The road to the Terrorism Bill
The Terrorism Bill is the British governments fourth counter-terrorism measure in five years. The 7 July 2005 bombings and the failed bombings of 21 July gave new urgency to its existing, long-term plans. The governments first reaction to the bombs had been relatively calm, but Tony Blairs statement in a press conference on 5 August that the rules of the game have changed sent a different signal.
The tensions inherent in this change of tone were apparent in the run-up to the 9 November vote. When it became clear that parliamentary opposition to the ninety-day proposal might be lost, the prime minister withdrew an earlier offer of compromise made by his home secretary Charles Clarke and turned the issue into a crude party political campaign, accusing the opposition Conservatives and Liberal Democrats in turn of being soft on terrorism. But in any case, the issues raised by the vote cannot be seen simply in terms of Westminster-village personalised politics, for the twenty-eight day detention-period that parliament supported still constitutes a violation of the central liberty that democracies guarantee their citizens.
This, indeed, raises the most immediate question for the British people raised by the Terrorism Bill and the House of Commons vote: will the governments emerging counter-terrorism strategy work, and will the new bill strengthen the countrys ability to identify and apprehend those who plan terrorist attacks? An answer is urgently needed, for the strategy and the new laws proposed by Tony Blair will have a profound effect on British democracy, the rule of law, criminal justice, the conduct of the police and security forces, civil and political rights and the shape of community relations perhaps for generations to come.
The balance between security and liberty
The rule of law and civil and political rights are the basic foundations of a modern representative democracy. In the heat of the post-7/7 debate, it is often blandly stated that Britain faces a choice between security and human rights, but this is an illusory choice. As Cherie Booth said in a lecture on 26 July 2005: it is all too easy for us to respond to such terror in a way which undermines commitment to our most deeply held values and convictions and which cheapens our right to call ourselves a civilised nation. It is vital to stress that human rights and security are not polar opposites; and that, indeed, Britains human-rights obligations under the European Convention on Human Rights are actually drawn up specifically to allow for emergencies, such as a campaign of terror.
Far from being antithetical to effective anti-terrorism laws and measures, respect for the rule of law and civil and political rights provides the essential basis for an effective counter-terrorism strategy, for protecting the public, for intelligence gathering and for asserting and upholding the values of a modern and pluralist democracy. Respect for the rule of law and individual rights is especially important to the states dealings with people within Britains Muslim communities who are likely to be essential allies in counter-terrorism strategy.
Also in openDemocracy on security, terrorism and civil rights in Britain:
Geoffrey Bindman, Civil liberties and the war on terror (May 2004)
Geoffrey Bindman, War on terror or war on justice? (March 2005)
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The fact is that civil and political rights are constitutive of democracy and the rule of law. These rights are the sinews of the two basic principles of representative democracy that the citizens of a country ultimately exercise control over their government, and that they share equally in that control. Such principles are meaningless in the absence of civil and political rights. Citizens must be able to debate issues freely in civil society, to communicate with each other and to associate and act together if they are to judge the policies and actions of governments and act upon those judgments.
These freedoms are equally integral to democracy within the sphere of civil society, allowing society and communities to adapt and develop their values and convictions that provide an overall normative framework for the policies and conduct of governments of all colours. Protests and demonstrations are an important and legitimate part of these processes so long as they are peaceful. All these activities must take place free from the surveillance and interference of government and the state unless it is necessary to protect the lives and livelihood of citizens and their democracy. Otherwise citizens will not feel free to make use of their civil and political rights.
Equally people must be protected from arbitrary arrest, imprisonment and torture. Habeas corpus and the rule of law are the hallmarks of British freedoms. This tradition of the security of the person and due process alongside the right to life and civil and political liberty occupies a significant place in the European Convention on Human Rights, which is in effect modern Britains Bill of Rights.
Britains counter-terrorism strategy
This tradition also makes it vital, even when there seems little doubt that would-be terrorists may be preparing plans for further mass murder, that the authorities avoid the mistakes and excesses of the counter-terrorism strategy employed during the thirty-year conflict in Northern Ireland. This included emergency measures and laws, unjustifiable killings by the security forces, arbitrary detentions (soon rightly abandoned), misuse of stop-and-search powers, arrest and holding charges, maltreatment and beatings of prisoners, and miscarriages of justice. The response turned Irish Catholics in Northern Ireland and Britain into suspect communities and contributed to resentment and alienation among them making access to intelligence more difficult.
Britain is not a police state. But its people do live under an increasingly authoritarian regime that is often intolerant not just of free speech and dissent but of the legitimate role of the judiciary in applying the rule of law to its actions; as a result, the basic principle of British justice namely, the presumption of innocence is being questioned.
The two key motors of an effective counter-terrorism strategy are accurate and reliable intelligence and the ability successfully to prosecute those guilty of terrorist or criminal plans and acts. The draft Terrorism Bill and indeed preceding counter-terrorism legislation must be scrutinised in this light, by asking how far it contributes to either or both of these objectives.
Certainly, the fit of laws to action is not always apparent. In October, a Downing Street report criticising the governments immature, unaccountable and disconnected counter-terrorist strategy was leaked to the press. The report complained that real work impact is seldom measured. Our own preliminary view is that more thought needs to be devoted to the root causes of terrorism, rather than multiplying legislation.
This conclusion echoes the view of the then cabinet secretary Andrew Turnbull, who wrote to permanent secretaries in April 2005: The aim is to prevent terrorism by tackling its causes to diminish support for terrorists by influencing social and economic issues. Turnbulls point that certain Muslim communities were most likely to suffer from the provisions of an ill-considered strategy is relevant to the Terrorism Bill. It is important that legal measures and police tactics inaugurated in the aftermath of 7/7 take care not to target Britains Muslim communities insensitively, but are instead geared to winning their confidence and cooperation. We acknowledge that the government is seeking to maintain a dialogue with Muslim leaders, but it is too soon to assess how real a bridge the talks are to hearts and minds within the Muslim communities.
Andrew Blick is the author of People who Live in the Dark: The History of the Special Adviser in British Politics (Politicos, 2004) and How to Go to War (Politicos, 2005)
Also by Stuart Weir in openDemocracy:
Democracy? Yes! (July 2004)
A strategy of understanding
It is not appropriate to come to definitive conclusions at this stage of our work. However, it is possible to list a series of tentative conclusions and suggestions:
- Britain has no need to choose between security and liberty in combating terrorism. Respect for the rule of law and civil and political rights is an important and positive aspect of a counter-terrorism, strategy and human-rights laws allow for necessary adjustments at times of national emergency
- Counter-terrorism laws alone will not stop terrorism, they can at best only reinforce the legal framework in which the police and intelligence services and the criminal justice system can operate effectively
- Much of the governments counter-terrorism strategy risks discriminating against Muslim people and alienating the Muslim communities, not least the recent proposals for dealing with extremism at places of worship
- There should have been pre-legislative scrutiny of the draft Terrorism Bill, as promised, especially as many proposals will erode significant civil and political rights freedom of expression and association, the right to liberty, the presumption of innocence, protection against arbitrary arrest and detention, the right to a fair trial. The current process of scrutiny in the House of Commons is too brief and unsystematic
- There is a wide range of counter-terrorism and criminal offences that can be used to bring prosecutions and multiplying further counter-terrorism laws is not necessary; the new Terrorism Bill largely replicates existing laws
- It is important that the authorities are able to prosecute suspects so far as possible for criminal offences successfully without diluting the existing principles and safeguards of the criminal justice system and so loosely criminalising yet more behaviour, as the draft Bill does; the definition of terrorism in its legislation is too wide and vague
- Since most evidence in such cases is usually intelligence material the ban on making use of intelligence intercepts is self-defeating. It is possible to use such material without risk to the intelligence agencies or to the advantage of terrorist organisations
- The twenty-eight day period of detention without trial for terrorist suspects is wholly disproportionate and liable to create individual injustices and police abuse while severely affecting the well-being of those imprisoned; twenty-eight days is far longer than the equivalent period in other countries and significantly erodes the basic presumption of innocence until proven guilty that is the bedrock of criminal justice in the UK
- Stop-and-search powers against terrorism are being used oppressively and discriminate against ethnic minorities; even the police acknowledge that their use is not of value in apprehending possible terrorists
- The new police strategy of shoot to incapacitate potential bombers moves the boundaries for the use of lethal force too far towards extra-judicial killing, especially given the historic failure of the British authorities to control the forces use of firearms
- There should be an urgent inquiry into the use of made of information obtained by torture abroad, and especially into the possibility that it is used as evidence in closed detention, proscription and control order procedures
- The government should abandon the idea of enacting statutory guidance for the courts over its plans to deport foreign suspects to countries which might torture them on the basis of assurances of good behaviour
- Notwithstanding the valuable role that the independent reviewer of terrorism legislation, Lord Carlile, plays in reviewing counter-terrorism laws, there is a need for democratic and comprehensive oversight of the governments counter-terrorism laws and strategy, and the activities of the police and security forces.
These judgments and recommendations address Britains government and wider political class in an atmosphere clouded by the events of July 2005 and the wider conflicts of which they are enmeshed. At such a time, the need to defend the security and liberty of the citizen, to nurture the values and standards of democracy, and to think clearly and coolly about issues of security and terrorism, is more important than ever.