Terrorism off the agenda, for now

20 July 2011 by

Updated |The UK public only really worries about terrorism after an attack or a credible threat of one. Certainly, at the moment, it would take a serious threat to knock the Shakespearean drama of phone-hacking off the front pages. Nevertheless, the government and others continue their efforts to contain the threat, and it is perhaps a sign of the strategy’s success that we are not unduly worried by it.

Part of that strategy is that under terrorism law the secretary of state must appoint a person to review the operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2000, and in particular proscription of organisations, stop and search powers, arrest and detention powers and prosecutions for terrorist offences.  To that end, the new Independent Reviewer of Terrorism Legislation, David Anderson QC, has released his first annual report.

Anderson replaces Lord Carlile, who in his 6th and final report said that the UK had become a “safe haven for foreign suspects due to its failure to persuade the Strasbourg court that when a person risks ill-treatment abroad they should be deported. Carlile has since made his views on Europe clear in a preface to Dominic Raab MP’s pamphlet: Strasbourg in the Dock.

David Anderson QC’s report will not be as incendiary as Carlile’s 6th, but makes some interesting points about current legislation. One aspect which has been picked up by the Guardian, Evening Standard and Telegraph relates to stop and search.

Stop and search powers have been controversial, and the 2010 European Court of Human Rights ruling in Gillan led to the curb of the use of section 44-45 searches, which the court found to be “neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse“. One major issue with the system, which is still being reformed, is that a disproportionate number of people being searched are young male Muslims, and the Equality and Human Rights Commission reports that such searches has “become their most frequent and regular contact with police“. Anderson observes:

Set against the limited policing dividend from use of section 44, such negative reactions are important and provide a further justification, albeit not a decisive one, for the abandonment of the power.

Moreover, in Gillan the court “considered the breadth of the discretion conferred on individual officers under section 44 to be too great“. Therefore, Anderson recommends the revision of the 2000 Act’s code of practice introduce full and proper guidance on the exercise of the officer’s discretion to stop and search, “so minimising the risk that the discretion will be used in an arbitrary manner“.

Interestingly, Anderson also examines stop and search powers at ports, airports or hoverports under Schedule 7 of the 2000 Act. The powers are significant:

Any person questioned is obliged, on request, to hand over ID and any information in his possession.159 He may be required to complete a standard form card (known as “carding”).160 He may also be detained for a period of up to nine hours beginning with the time when his examination begins.

The power is also widely used. In the year to 31 March 2010, 85,557 people were examined using Schedule 7 powers. Ethnic data has been collected since April 2010, and again Asians are disproportionately searched. People of Asian appearance made up 25% of those examined for less than an hour, but 41% of those examined for over 1 hour and 44% of those subject to detention. This may, Anderson points out, “feed resentment“, although the powers have also led to a number of convictions.

Anderson suggests that it “does not seem beyond the bounds of possibility” that Article 5 (right to liberty) and/or Article 8 (the right to privacy) apply in such cases – I would say that indeed likely to apply – and as such, following Gillan 

the onus will be on the authorities to justify those powers as necessary in the interests of national security, proportionate in their application, “sufficiently circumscribed” and “subject to adequate legal safeguards against abuse.

A “careful review” of the Schedule 7 powers is recommended. The report provides a number of useful questions for such a review to ask. It may be that if such a review is not undertaken the issue will end up in court in any event.

Anderson also makes recommendations in respect of proscription (the public identification and condemnation of enemies of the state), arguing that it is too difficult to achieve “depropscription” without resort to lengthy and difficult legal proceedings. He recommends, sensibly, that all proscriptions shall expire after a set period, the onus then being on the Secretary of State to seek the assent of Parliament if she wishes to reproscribe.

Simon Hetherington on the Halsbury’s Law Exchange picks up on Anderson’s obersevation of a flaw in the Parliamentary scrutiny system, which falls down if an investigation does not conveniently align to the Parliamentary calendar. This is a particular problem in light of proposals for the emergency extension of custody limits for suspects in terrorism investigations, which would fall to Parliament (see para 4.23 of the Home Office’snew counter-terrorism strategy: “a new order-making power to increase the maximum limit will be created for use only when Parliament is dissolved“). Clearly this is a problem if Parliament is not sitting. Hertherington argues:

the decision on the liberty and rights of a person could – and regularly will – rest on the unscrutinised decision of a member of the Executive, in the person of the Home Secretary… Without suggesting for a moment that the power would be misused, this hardly looks like a balance, and doesn’t feel like a protection.

I have only picked up on a few aspects of Anderson’s extensive report. His full recommendations are summarised from page 100.

In the meantime, whilst it is a relief that terrorism is for the moment out of the news, it is likely that the fast approaching 2012 London Olympics, which will coincide with the 5th anniversary of the 7/7 London bombings, will make such scrutiny even more urgent.

The effects of the 7/7 attacks on the capital are still being felt; yesterday the Government published its response to the 7/7 inquests, accepting all of the coroner’s recommendations – see the Guardian’s report. It is to be hoped that the government and others will keep its eye on the terrorism ball, whilst attempting to maintain the difficult security versus rights balance. And that the general public can continue to worry about more salacious but ultimately less dangerous issues.

Update, 4 November 2011 – The Government’s official response is here.

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