Reviewer of Terrorism Legislation calls for rebalancing laws in favour of liberty

BBC News and the Guardian have covered a report published by the Independent Reviewer of Terrorism Legislation, David Anderson QC on ‘The Terrorism Acts 2011’. His report looks at the operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 in 2011. In his report, he criticises terrorism legislation as ‘untidy’ and states that at times excessive weight is given to the idea that “terrorism is different, losing sight of the principle that terrorism is above all crime” and that some aspects of counter-terrorism legislation have been applied with “excessive enthusiasm”. He argues that some aspects of legislation could be “rebalanced in favour of liberty” without harming Britain’s security needs.

Some of the key points made in the report are summarised below:

• The risk posed by Al-Qaida related terrorism in the United Kingdom remains real, but should not be overstated.

• While some plots were detected in 2011, arrests, charges and convictions for terrorist offences in Great Britain have all declined markedly since the middle of the last decade.

• The victims of the 2005 London bombings remain the only people ever to have been killed by al-Qaida related terrorism in the UK.

• According to Europol, no al-Qaida affiliated or inspired attacks were carried out in EU Member States during 2011 – though the UK was said to remain a constant target.

• Counter terrorism powers are “extreme measures which are therefore deserving of searching inquiry and review”.

• Counter-terrorism law in the UK is bitty, messy and hard for even its practitioners to comprehend as a whole.

• UK counter-terrorism legislation “at times gives excessive weight to the idea that ―terrorism is different, losing sight of the principle that terrorism is above all crime, and that special laws to deal with it need to be justified by the peculiar nature of the crime. Elements of it have been conceived and applied with excessive enthusiasm.

• Parliament has been an effective check on the government and the executive “has shown more restraint than many people anticipated.” Anderson also notes the “crucial interventions” of the courts in London and Strasbourg for example in ending the old system of detention without trial; s. 44 concerning stop and search under the Terrorism Act 2000, and the operation of closed material procedures used in control order cases. He argues that “These judgments have in a number of respects affirmed the importance of liberty and due process, without, so far as I can judge, causing an unacceptable increase in risk.”

Anderson makes a number of recommendations on specific aspects of the terrorism acts, whereby he believes that “a cautious rebalancing could be achieved without materially increasing the risk from terrorism”. They include the following:

Proscribed organisations
• Anderson argues that where far-right terrorist organisations meet requirements for proscription, proscription “should be considered according to the same discretionary criteria as have been applied to UK organisations concerned in al-Qaida related terrorism.”
• Any organisation that is not “concerned in terrorism…fails the statutory test for proscription as interpreted by the PMOI (People’s Mujahedeen of Iran) case”. Any proscribed organisations which fail this test should be deproscribed, and proscriptions should only be applied when of real utility in protecting the public.
• Proscriptions should expire after two years with the opportunity for the Secretary of State to go through a due process of scrutiny to have an organisation reproscribed.

Arrest and detention of terrorist suspects
• Police should avoid arresting and detaining under s.41 “when the suspect is always likely to be charged, if at all, under laws other than the Terrorist Acts.”
• The TA 2000 should be amended so that extended detention periods are only issued when satisfying statutory requirements.
• Persons arrested under the TA 2000 s.41 should be allowed to apply for court bail.

Port and border controls
• People subjected to Schedule 7 stop and search powers should be made aware of a complaints mechanism, and should be encouraged to lodge a complaint when the power is misused.
• Those entrusted with Schedule 7 stop and search powers should be constrained from carrying stop and search when unnecessary, in an arbitrary manner and when no specific intelligence is available indicating involvement in terrorist activities.

Anderson’s suggestions point to the need for a cautious balance between security and liberty in challenging terrorism in the UK. His recommendations in particular point to the way in which terrorism legislation has been drafted and applied often in a manner of haste, and in a way that unnecessarily infringes on people’s personal liberty. The proscription for example of the extreme group Muslims Against Crusades in November last year is an example where a group was proscribed for expressing unpalatable views, rather than any known terrorist activity. No such similar action, however, has been taken against a number of far-right organisations, notably the English Defence League and affiliated off-shoot organisations such as the ‘North West Infidels’, who similarly express extreme opinions.

On the issue of Schedule 7 stop and search powers, there has been consistent protest from civil liberties groups and from Muslim communities due to the abuse of power and the harassment that some people have been subjected to at airports, increasing the perception that Muslims are a ‘suspect community’.

Interestingly, Anderson’s opinions and suggestions contrast starkly with comments made earlier this week by the Director General of MI5, Jonathan Evans on the terrorist threat faced by the UK. Evans emphasised the continuing threat from ‘Al Qaeda’ inspired terrorism and the ‘permissive environment’ which instability in the Middle East offered for opportunist terrorists. However, Evans only briefly mentioned the issue of extreme right wing and left wing extremism despite the growing body of evidence of the increasing threat this poses in comparison with Al Qaeda inspired terro
rism. The stark difference in attitudes expressed by Anderson and Evans perhaps point to gulf between public experiences and attitudes relating to terrorism, and government policy which has reacted to extreme and exceptional events, but that has lacked the necessary independent and measured oversight to bring in a balance between the needs of security and liberty. Alarmist reporting such as this recent report by the BBC on the threat posed by ‘British Muslim extremists’ to the Olympic games in London are an example of the kind of biased discourses which can develop and become naturalised when a measured approach to terrorism, which as Anderson puts is ultimately a crime, is not taken.

The full report by David Anderson QC is available to download here.