Our terrorism legislation is getting close to a reasonable balance of liberty and security.
Often at this time of year, I teach a short course in UK terrorism law at London South Bank University (LSBU). I love it: the students are fantastic and preparation provides an opportunity to review legislation which tests both our constitution and our politics.
Out of that process emerges a renewed despair at much of Labour’s response under prime ministers Blair and Brown; recognition of the coalition government’s greater balance; and respect for Theresa May’s appointment of the independent reviewer of terrorism legislation, David Anderson QC.
History will not be kind to the memories of Labour’s peculiarly bombastic line of home secretaries John Reid, David Blunkett and Charles Clarke. Jack Straw, who is a more complicated case, took what became the Terrorism Act 2000 through the parliamentary process. This followed a review by Lord Lloyd of Berwick in 1996 and was based on principles that he enunciated: acceptance of the particular difficulties of dealing with terrorism; the need for some special measures but on the basis only of a range of safeguards; minimum supplementation of the basic criminal law; and compliance with international obligations.
As Northern Ireland quietened down, the 2000 act was intended to be the law that ended all emergency terrorism laws. The truth was that it left little extra to be done, but it was perhaps excusable that the government wanted to be seen to respond to the shock of 9/11. It may even have been excusable that, in the uncertain fear of the moment, the 2001 legislation introduced detention without trial for a limited category of suspected foreign terrorists who would not voluntarily leave the country.
Little of the output in the field of terrorism legislation by Labour’s subsequent home secretaries can be so easily excused. The detention provisions were left in force well after it was clear that the threat to the UK was from domestic as much as foreign sources. Detention without trial was finally declared unlawful by the House of Lords in 2004.
Lord Bingham’s lead judgment was based on subtle argument and fine distinctions. He thought that discrimination against non-nationals was caught by the equality provisions of article 14 of the European Convention on Human Rights. It is also pretty clear that he thought the government’s continued adherence to detention without trial close on downright Wednesbury unreasonable.
The passage of Charles Clarke’s Prevention of Terrorism Act 2005 was little short of a scandal in terms both of its content and abuse of parliamentary process. It was introduced on 22 February 2005. At its core were control orders, which have now been abandoned. It caused enormous controversy and completed all parliamentary stages only after a rancorous all-night Lords sitting. It was given royal assent on 11 March.
And if further proof is needed of the frenetic expense of parliamentary time at the behest of Labour ministers, just remember the long-running furore over proposed 90-day detention without trial. We now manage on a basic limit of 14. Consider also the great argument over the creation of new offences such as ‘glorification’ of terrorism. It turned out that soliciting for murder under section 4 of the Offences against the Person Act 1861 was handy enough for most practical purposes.
The Liberal Democrats (always), the coalition government (mostly) and home secretary Theresa May (interestingly) have brought a bit more balance to terrorism legislation. David Davis had to ditch his hopes of ministerial advancement by making an issue of his libertarian position against 90 days by way of a special byelection, but he did us all a favour. There is less enthusiasm for the dramatic repressive gesture.
Into this more sober climate has stepped Anderson. He replaced Lord Carlile – once a 90-day supporter. In life, Anderson is an urbane, intellectual lawyer-professor combining work as an EU specialist silk with a chair at King’s College London. In his public persona as the independent statutory reviewer of terrorism, he is much the same. You have got to like someone whose website proclaims: ‘Welcome! I am an independent QC and not part of the government machine.’
Anderson’s site proudly displays copies of his tweets, helpful lists of significant human rights cases, copies of his reports and reflections on his role. More importantly, his advice is a breath of fresh air and if he believes (as he does) that there is a case for a very limited range of surveillance monitoring then I, for one, take that more seriously than the word of any government minister.
So, issues remain in our terrorism legislation. For example, as Anderson has argued, the basic definition of terrorism is too wide. Overall, however, I have no problem with presenting LSBU’s largely overseas students with the view that our legislation is getting close to a reasonable balance of liberty and security. So, credit where credit is due.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice