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THE PREVENTION OF TERRORISM BILL 2005
Following the debate at Second Reading on the Prevention of Terrorism Bill 2005, British Irish rights watch (BIRW) again raises our serious concern about the provisions of the Bill and their impact on fundamental human rights in the UK. We strongly urge all members of Parliament to give close consideration to the issues raised by us and other human rights organisations, as well as by the Joint Committee on Human Rights, with regard to the Bill and to take action to ensure that the fundamental principles of democracy, human rights and the rule of law on which our society is based are not further eroded by hasty and ill-conceived legislation.
On 22nd February, shortly after the Prevention of Terrorism Bill was published, BIRW issued a short briefing paper setting out our preliminary concerns about its terms. In the days since then we have had further opportunity to study the Bill and assess its implications.
Our comments on the Bill are informed by many years of experience working on human rights issues and cases arising out of the conflict and peace process in Northern Ireland. Indeed, it has been our consistent experience in Northern Ireland that poorly-conceived ‘emergency’ laws have undermined respect for human rights and prolonged the conflict, breeding new generations of recruits for terrorist groups. It is with this experience in mind that we feel duty-bound to intervene in the public debate on the Prevention of Terrorism Bill and to remind members of Parliament of the lessons that should have been learned from recent history in Northern Ireland.
The Government has argued that the new terrorist threat posed by al-Qaeda and associated international groups is qualitatively different from anything that we have faced in the past. They have even suggested that those who drafted core human rights documents such as the European Convention on Human Rights could not have conceived of the type of international terrorist threat now in existence. This argument is both barren and untrue. In the past fifty years the world has faced repeated attempts at genocide, widespread man-made famine, and the constant threat of nuclear and chemical warfare. In reality, the most serious threats to peace and stability have emanated not from terrorism but from government dictatorships. Democratic governments who fall into the trap of posing nameless, terrifying threats to the population, based on intelligence which is too sensitive to disclose, can all too soon find themselves condoning torture and state-sponsored executions.
Not only is this morally repugnant, but also ignores the evidence from Northern Ireland and countless other parts of the world that have experienced violent conflict and terrorist attacks. In Northern Ireland, internment without trial, ill-treatment, abuse of lethal force, trial without jury, and collusion did not defeat terrorism. Instead, they deepened and prolonged the conflict, destroyed ordinary policing, created miscarriages of justice, profoundly undermined respect for the rule of law and impaired any prospect of good governance. They also gave those who resorted to terrorism a spurious justification for their activities, which they were able to characterise as fighting oppression. This experience demonstrates that violating human rights is simply not an effective way to bring violence and terrorism to an end, and will only result in the creation of political prisoners and prisoners of conscience.
Equally seriously, adopting such draconian powers, especially when neighbouring countries have not done so, robs the United Kingdom of its right to criticise human rights violations in other countries. This is particularly problematic in relation to what the Government calls derogating control orders, which it has already said it has no immediate intention of using. It is manifestly disproportionate to create powers that are not needed, and to do so will immediately lay the United Kingdom open to challenge in the European Court of Human Rights, since a person need only show that they might become a victim of a law which is inimicable to his or her human rights[1]. The government’s decision not to impose house arrest on the Belmarsh detainees calls into question the wisdom of their original judgment in interning them without trial, which the House of Lords so rightly criticised, and underscores the imprudence of continuing to incarcerate them since last December.
The Bill provides that the Home Secretary need only have reasonable grounds for suspicion that someone is involved in terrorism-related activity [Clause 1(a)] and consider it necessary to impose a control order [Clause 1(b)]. This creates an extremely low threshold and the provisions for challenging such a determination by the Home Secretary are woefully inadequate. With regard to so-called non-derogating control orders, the affected individual can only argue that no reasonable Secretary of State could have suspicion that he/she is involved in terrorism or find it necessary to impose a control order. In assessing such a challenge, the relevant court is not empowered to examine the evidence on which the Secretary of State made his/her decisions. Thus, the officer(s) providing the intelligence cannot be cross-examined nor the Secretary’s interpretation of the intelligence probed. This is extremely troubling since the intelligence on which a control order is based can be withheld from both the subject of the order and his or her lawyers [Paragraph 4(3)(a), Schedule]. Most people are aware that intelligence is not always correct. Douglas Hogg MP’s remarks about some solicitors being unduly sympathetic to the cause of the IRA, followed within three weeks by the murder of Belfast lawyer Patrick Finucane, were based on intelligence provided by the then Chief Constable of the RUC, Sir John Hermon. Fifteen years too late to save Patrick Finucane’s life, and that of another solicitor, Rosemary Nelson, Sir John Stevens and Judge Peter Cory have both found that intelligence to have been wrong.
Paragraph 8(2) of the Schedule allows the Secretary of State to reinstate a control order in the same terms and on the basis of the same intelligence evidence, even if it is quashed by the court. This power negates the very point of challenging a control order and eliminates any kind of effective judicial supervision of the control order process.
The prevention of Terrorism Bill is fundamentally flawed. It gives the Secretary of State powers that are not available to the courts and creates the potential for political over-reaction at a time of crisis. However, Members of Parliament and Peers should not make the mistake of merely transferring these unacceptable powers from the hands of politicians to those of judges. This Bill should be rejected in its entirety as too hasty, too ill-thought-out, and too likely to cause more problems than it solves. Those who pose a terrorist threat to this country have as their ultimate aim the destruction of our democracy. It is not the job of our elected Government to do their dirty work for them.
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British Irish rights watch (BIRW) is an independent non-governmental organisation that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.
FEBRUARY 2005
For Peace Justice & Human Rights
