Nine-nil. The House of Lords does not get more decisive than that: control orders are incompatible with the European Convention on Human Rights. Alan Johnson, the new boy at the Home Office, duly declared their Lordships’ judgment ‘disappointing’. But it is more the government that merits disappointment than the judges.
The fundamental point in the case was, in the words of Lord Hope, that ‘everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him’. In his view, ‘if the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against them … The slow creep of complacency must be resisted’.
Control orders are made under the Prevention of Terrorism Act 2005. This was rammed through parliament in 18 days. Tony Blair was warming up for an election and it is difficult to avoid the inference that the legislation was deliberately expedited for electoral advantage.
The Lords held its second reading of the bill without an up-to-date copy that contained the government’s Commons amendments; the printers could not keep up with the parliamentary timetable. The then prime minister was in pre-election mode: ‘If what [the opposition] are actually doing is watering down the legislation in the interests of playing daft games with the nation's security, then this will flush it out,’ he barked. Peers slept in the corridors of the Lords in a vain attempt to give the bill proper scrutiny. As the game of ‘ping pong’ with the Commons played itself out, they chalked up a 30-hour stretch. Only twice has a session lasted longer. Their judicial colleagues have just torpedoed the whole thing.
The Terrorism Act 2000 was intended as the terrorism legislation to end all legislation. Problems in Northern Ireland were winding down; this act reflected the lessons learned. However, 9/11 and subsequent bombings provided too much temptation to ministers to rush through more legislation. They were driven to show that counter-terrorism needed them, not just the security services and the police. Blair famously announced that ‘the rules of the game have changed’. Lord Hope’s response is effectively that ‘they have not. The old values of fairness and due process remain’. Quite right.
Blair legislated with far more abandon than effect. He followed the 2000 act with the Anti-Terrorism, Crime and Security Act 2001, part 4 of which was declared incompatible with the convention by the Lords. This led to the Prevention of Terrorism Act 2005, which has just met a similar fate. Then we got the terrorism acts 2006 and 2008. UK terrorism legislation now extends to over 400 sections and just under 40 schedules. More than half of this was passed after 9/11. And what do we all know is the best determinant of effective counter-terrorism policy? The answers are largely operational – you need good police and intelligence work. The terrorism cases successfully prosecuted by the CPS suggest that all the Terrorism Act 2000 needed was relatively minor supplementary offences, such as the criminalisation of various acts preparatory, or related to, terrorism.
Quantity of legislation has just not brought quality. Nearly 200 people have been convicted of terrorist offences in the UK since 9/11. Only 10 were solely found guilty of offences created after the Terrorism Act 2000. Terrorism has become the prime site of the phenomenon of ‘symbolic legislation’; acts of parliament valued for political gesture rather than legal effect. Special advisers openly write articles extolling this tactic. It is a nonsense. The statute book is cluttered up by unenforceable legislation that gives wide powers to the authorities but little precision. Worse, it encourages a fuzzy approach to enforcement. Of the 120,000 people stopped and searched last year on the ground of suspicion of terrorism, not one was subsequently convicted of a terrorist-related offence.
Meanwhile, major reforms that could actually make a difference have been avoided. We should remove the self-imposed ban on the use of intercept evidence. It is the reason why, in at least some cases, the government cannot get a criminal conviction and has to argue for a control order. Phone intercept is what caught five key mafia godfathers and a number of al-Qaida operatives in the US. Back in the days of hand-delivered ‘snail mail’, intercept is how Queen Elizabeth caught Mary, Queen of Scots. Only the technology of communication has changed. There is no difference in principle between opening a letter or bugging a telephone line.
There are swathes of ‘symbolic’ legislation that we should shred. Remember the enormous fuss about whether ‘glorification’ of terrorism should be an offence? A good number of undesirables have been convicted of solicitation to murder and incitement to violence. Only one has been convicted of encouraging terrorism through glorification. Malcolm Hodges, in the words of the CPS website, ‘sent an identical letter to several hundred addresses. The letter glorified terrorist attacks ... [stating] "you are right to kill infidels" but are mistaken in targeting planes and the underground’. Hodges, who had failed an accountancy exam, suggested that better targets would be the four major accountancy institutions.
You might think that Hodges’ conduct required psychiatric assistance more than the full majesty of the law. You might also think it lucky that he did not fail the legal practice course and direct his ire on the equivalent legal institutions. But, together with the failure of control orders, what a disappointing legacy for ill-considered and unnecessary terrorism legislation.
Roger Smith is director of the law reform and human rights organisation Justice