The much-maligned Prevention of Terrorism Act exposes shortcomings in Government policy, argues Roger Smith. Fairer legislation would have bolstered its stance

The Prevention of Terrorism Act 2005 reached the statute book 18 days after it was introduced. The government approached its legislative process with just about as little subtlety as could be imagined. The result is hardly a tribute to considered thought and measured action.


Counter-terrorism policy is not really an appropriate subject for parliamentary playground politics, as a number of distinguished Lords of all parties remarked in the course of a bruising series of debates. In the end, the government declared its strength in victory. Out went the attempt to introduce a ‘sunset clause’. In came only a vague commitment to reconsideration.


In the midst of all the sound and fury, there was little space for serious reflection on the appropriate balance between protection of civilians and civil rights. Yet, this is a serious and difficult issue.


The purists’ line, articulated by the group Liberty and other civil libertarians, is that there should be no infringement of liberty of those suspected of terrorism other than as the result of a criminal trial in which a suspect has been found guilty.


The group Justice would have been prepared to countenance at least a serious debate on the circumstances in which liberty might be curtailed in the face of a threat that justified such a step. Discussion would then have revolved around the circumstances in which this might have happened (serious evidence of a specified level of threat to public safety); the extent of incursion into liberties that might be acceptable (certainly short of ‘house arrest’ or imprisonment); and the safeguards (judicial hearing, standard of proof, limited duration of order, right of appeal, etcetera).


There is no real excuse for the government’s failure seriously to open such a debate. It allowed the detainees in Belmarsh to stay there on an apparently indefinite basis. It made no great effort to make up its mind in response to a number of reports recommending the way forward. It even ignored the recommendations of a rather thorough consideration by a committee of privy counsellors under Lord Newton. It gave every indication of only being panicked into action by the magnitude of its House of Lords defeat in December. Admittedly, openness was not the then home secretary’s personal style, but it was surely the correct political move.


The problem now facing the government is that it looked petulant and shallow while it was pushing its Bill through. The resulting Act, though improved by the absurd speed of its progress, is actually a dog’s dinner. A government famed for its spin has managed to alienate just about the maximum number of constituencies. Most important among them will be the communities from which terrorists are most likely to arise. The legitimacy of this Act will be challenged if ever-larger numbers of people become the subject of its control orders.


The Act retains a difference between ‘derogating’ and ‘non-derogating’ control orders. Provisions on derogating orders have been implemented conditionally in what must be a somewhat suspect procedure. They come into force only if a derogation has been made. This is designed for speed in an emergency, though why this was such a high priority is not clear. Suspects in terrorism cases can be held in custody for a fortnight in any event, clearly long enough to rush through specific legislation if required.


The provisions on non-derogating orders show all the signs of legislative haste. Such a control order may impose any obligation on a suspect ‘for purposes connected with protecting members of the public from terrorism’. The Act then gives a list of examples – largely of restrictions, but also included are matters such as a requirement ‘to comply with a demand made in a specified manner to provide information to a specified person in accordance with the demand’. Breach gets you a maximum of five years’ imprisonment.


This should prove a rather handy weapon, requiring people to incriminate themselves or be locked up for five years. It might be acceptable, under certain conditions, in a ‘ticking bomb’ situation but, as a general provision, it would appear Draconian. Notably, this provision has none of the safeguards attached to similar provisions.


We already have confirmation from ministers of ‘mission creep’. These provisions were passed with the spectre of the 11 September 2001 terrorist attacks in the US in mind. However, ministers have confirmed that their use in Northern Ireland is under consideration. Unlike the provisions overturned by the House of Lords, this Act applies to all acts deemed ‘terrorism’, not just those with an international dimension. Their use is likely to spread in exactly the same way as anti-social behaviour orders – which, in many ways, involve a similarly unsatisfactory procedure.


The greatest concern is that the government should have a higher objective than just looking tough on terror. It actually has to defeat it. That means doing everything possible to divide potential terrorists from their potential host communities. Legislation that is not seen as fair or that allows too wide a round-up of the ‘usual suspects’ will foster anger and despair. That is likely to be the fate of this Act.


Roger Smith is director of the law reform and human rights organisation Justice