Britain’s anti-terrorism policy: an eternal cycle

Rhiannon Talbot
4 July 2006

The suicide-attacks on London's transport system on 7 July 2005 cost the lives of fifty-two travellers and injured 700. The heightened security alerts after the bombings, which increased after the almost identical (but abortive) attacks of 21 July, contributed to the fatal shooting by the police of a Brazilian electrician, Jean-Charles de Menezes.

Londoners (as well as residents of other UK towns and cities – especially those in Northern Ireland) had been familiar with bombings by the Irish Republican Army and its splinter groups from the 1970s to the 1990s, and the expectation of some sort of attack had been present since 9/11 in the united States and Britain's involvement in the invasion of Iraq. But this, the first suicide-attack on British soil, still came as a profound shock to most people in the United Kingdom, including the security forces.

As the investigation unfolded, perhaps the biggest surprise was the bombers' identity. Mohammad Sidique Khan, the presumed leader of the four perpetrators, was a university graduate, classroom assistant and youth worker who – like two of the other bombers – was born and raised in Britain. The involvement of such apparently ordinary British citizens raised profound questions about the nature of British society, Muslim experiences in Britain, and anti-terrorism policies in the 21st century.

In response to the attacks, prime minister Tony Blair established political and community initiatives to explore these questions and argued that new approaches to anti-terrorism were required. A number of collaborative initiatives with Muslim organisations were established with government financial assistance, and the Muslim Council of Britain was engaged to assist in understanding jihadist motivations. This range of initiatives included the passage or proposal of new anti-terrorism legislation – the latest in a series of such laws passed since 2000. But how far do they represent an advance on the policies devised to address the thirty-year conflict (or "troubles") in Northern Ireland from the late 1960s to the late 1990s?

Rhiannon Talbot is a lecturer in Newcastele Law School, northeast England

Also in openDemocracy on the law, security and counter-terrorism:

Andrew Blick & Stuart Weir, "The rules of the game: Britain’s counter-terrorism strategy"
(10 November 2005)

Geoffrey Bindman, "Human rights: can we afford them?"
(2 February 2006)

Mohamed Al Roken, "Terror, law and human rights in the Arab Gulf states" (10 April 2006)

Sadakat Kadri, "The wrong way to combat terrorism" (3 May 2006)

The current policy

The key principle in UK anti-terrorism policy is to treat terrorism as a crime – to investigate, prosecute and convict people of their involvement in conspiring, supporting and executing terrorist acts. The most serious crimes associated with terrorism are prosecuted under the normal criminal law. There are, however, a large number of lesser offences that have been created to deal specifically with terrorism. This is an approach Britain shares with most western states.

Terrorists are perceived to pose particular problems for police investigations, and various strategies have been designed to overcome these problems, some of them in place since the early 1970s. The police have been given special powers, reforms of the security and police forces have been inaugurated, in order to enhance their counter-terrorism capacity. A new national (FBI-style) police body dedicated to terrorism and organised crime has been established (the Serious and Organised Crime Agency); and the role of the domestic security service (MI5) has been expanded, supported by a huge expansion in its size and budget.

If these apparently new initiatives are compared to the policies pursued in Northern Ireland, it is clear that they are often repetitions of old and sometimes discredited policies.

The use of the criminal law

The decision to make the prosecution of terrorist suspects a priority was made in 1973. Until that point, juries in Northern Ireland had been either been intimidated by Republican (Irish nationalist) or Loyalist (British unionist) paramilitaries into acquitting people or biased towards co-religionists, so that prosecution had been more or less abandoned. The criminal-justice system in Northern Ireland was overhauled and a new range of offences dedicated to terrorism were enacted to supplement the criminal law. Although this prosecution policy is not new, the way it has been stretched since 2001 is novel.

The specialist offences that have been enacted are so broad they undermine the fundamental principle of criminal law that a person should be able to know not what is or is not a crime. "Encouragement of terrorism" in the Terrorism Act 2006 could make a university course on terrorism and counter-terrorism illegal, and "terrorism training" could even cover basic school chemistry lessons.

The breadth of these offences means that it is not the person's actions that determine if they are a crime, but the exercise of administrative discretion by the police and the Crown Prosecution Service. Allowing the state such wide discretion in determining what amounts to a crime in the implementation of the law is a departure from previous specialist offences, which although broad were never as indeterminate as those enacted after 7/7.

Meanwhile, the expansion of MI5 and the foreign intelligence service MI6's involvement has created other problems for prosecution. Much of the intelligence they generate is inadmissible in a court of law. The UK and Ireland are the only two countries in the west that do not admit intercept intelligence in trials, an embargo imposed by parliament to protect intelligence-gathering techniques.

The British government has tried to introduce intelligence as evidence in other ways. In the case A (2005) the government sought the legal right to rely on evidence that had been obtained through torture overseas. The law lords said no. The UK has previously been found guilty by the European Court of Human Rights of oppressive and inhumane treatment of terrorist suspects, but confessions obtained through mistreatment were admissible if the abuse was not inflicted in order to obtain that confession. This cavalier attitude to the human rights of terrorist suspects still permeates all counter-terrorism policies. In Northern Ireland, it proved to be a costly, and much-repeated, mistake.

To overcome these evidential limitations the government introduced executive powers that avoided open-court hearings: detention without trial and control orders. Control orders are issued by the home secretary and impose a range of serious limitations on individual freedoms. The judicial scrutiny of these orders is very limited and in the recent case of Re MB (2006) they were condemned as a breech of the European Convention on Human Rights.

The use of executive power to control people's movements has been used before in so-called exclusion orders. These applied in principle to the whole of the UK, prohibited UK citizens in England, Wales or Scotland from entering Northern Ireland or vice-versa; in practice they were only used to confine people to Northern Ireland. Extensive use of executive powers to strip citizens of their human rights tended only to give favourable publicity to those on the receiving end, and to increase the censure of Britain on the international stage. Detention without trial had also been tried in Northern Ireland between 1971-5. It was a disastrous mistake in both security and political terms, but the government repeated the error in addressing the problem of jihadists.

The police's powers

The expansion of police powers began with the new prosecution policy in Northern Ireland in the early 1970s. The current powers in place are greater than those previously available, and they tend to be used more enthusiastically. The police can arrest a person whom they reasonably suspect to be involved in the preparation, instigation or commission of acts of terrorism anywhere in the world. This is in marked contrast with the ordinary power of arrest, which requires a reasonable suspicion of a particular crime; the powers of arrest granted under terrorism legislation are far greater.

The illiberal use of this terrorism arrest power was demonstrated at the Labour Party conference in 2005 when an 82-year-old heckler was ejected and questioned for shouting "nonsense" during the speech of the then foreign secretary Jack Straw. In total nearly 400 people were arrested under the Terrorism Act 2000 during the week-long conference.

After an arrest, the suspect can be detained by police prior to being charged with a crime for up to twenty-eight days if their detention assists the investigation (before 2003 a person could only be detained for seven days). The new detention provisions are a considerable extension of police power, which the police wish to further expand to three months. The length of detention is problematic because it occurs in an adversarial trial system where the purpose is to prove who has the strongest argument, not what the truth actually is; the process brings into question the fairness of any trial that might be conducted.

Northern Irish police had a special power to stop and search people on suspicion of involvement in terrorism. This was extended to all UK police in 2000. Since 2001 the use of this power has exploded; in the three months after 7/7, many UK police forces reported stopping more people than in the whole of the previous year. The figures are in thousands and in some cases tens of thousands. There are serious questions that the excessive use of stop-and-search powers are leading to harassment and alienation in the very communities whose assistance the police most need in preventing terrorism.

In Northern Ireland indiscriminate use of police powers was found to produce feelings of harassment and resentment against the police, increasing community alienation. This only exacerbated problems in countering terrorism: people who might have approached the police with relevant information (if they were not intimidated by the paramilitaries into keeping quiet) often became too distrustful to do so. In continuing this approach, UK policy is continuing and indeed expanding the very policies that create difficulties in investigating and prosecuting terrorist acts.

The lost lessons

The year since 7/7 has seen a lost opportunity in developing counter-terrorism policy. The new powers and strategies have merely been an extension and expansion of previously tried, and sometimes failed, policies from Northern Ireland.

The crucial change that has not been made is the way policies are conceived, formulated and implemented. After 7/7 questions were raised about the links between the security and political policies that might contribute to terrorism. Tony Blair's initial call to community and political commentators to engage with the causes and responses to terrorism was not carried through. Moreover, the conclusions reached by the Muslim Council of Britain and informed political commentators on the social and political influences on terrorism have been segregated from debate on security policy.

The result has been that the British government has continued to divorce debates on security from debates on the political forces that drive terrorism. This means in turn that when new security policies are devised, their likely political effects are not adequately considered.

The security and political aspects of counter-terrorism policy ought to be seen as distinct but related parts of a single, integrated whole. Instead, their segregation has been the backdrop to UK policy-making on the issue since 1969. After 7 July 2005, an opportunity to connect security and political concerns and build truly innovative counter-terrorism strategies has been lost.

Had enough of ‘alternative facts’? openDemocracy is different Join the conversation: get our weekly email


We encourage anyone to comment, please consult the oD commenting guidelines if you have any questions.
Audio available Bookmark Check Language Close Comments Download Facebook Link Email Newsletter Newsletter Play Print Share Twitter Youtube Search Instagram WhatsApp yourData