Nicola Zichella & the editor in chief of Constabulary magazine Mr Christopher Locke
Counter terrorism powers
Christopher Locke looks at the new measures to make the counter-terrorism legislation fairer and considers the balance between the rights of terrorists and the rights of innocent members of the public
It has always been difficult to balance the human rights of a terrorist or suspected terrorist with the rights of innocent members of the public. The recent deaths at Domodedovo airport in Moscow has reminded us of what can happen at any time in any country when police fail to get the intelligence they need to prevent such an atrocity. To get such intelligence police and the intelligence agencies need the powers to arrest, detain, monitor the movements of suspected terrorists and if necessary to use the high tech surveillance capabilities and even undercover officers if the need arises.
For those who have watched dramas like “24” or Spooks such scenarios are presented in each episode where a government agent has to decide whether to break the law by intimidating or torturing a suspect in order to save the lives of hundreds or thousands of innocent people. Although those storylines seem farfetched there is a great deal of truth in the underlying message – should we respect the human rights of a suspected terrorist or should we place greater value of the human rights of the potential victims of the atrocities they commit.
When dealing with theoretical cases, or even real cases but relating to people overseas which do not directly affect us it, is easy for armchair experts and human rights campaigners to spout the old adages such as “we must not lower ourselves to the level of the terrorist” or “if we allow some lapses that will be the thin end of the wedge and soon all our human rights will be lost” the question is – are they right?
Police officers and the security services work in the real world; this is not a TV drama or a theoretical debate at university but real lives we are talking about. I have to wonder how many armchair experts and human right campaigners would still say the same if it was their child, husband, wife, mother or father who was dying somewhere locked in a cellar or held by violent terrorists who were torturing them or who were on a plane with a bomb ticking.
The police have a suspected terrorist in custody who they are sure knows where the hostage is located, knows where your child is in fear and about to die, or your mother, sister or daughter who may be raped and killed if nothing is done - would they still want the officers to do nothing? Would they want the terrorist released perhaps to kill again and give up all hope of rescuing your relative?
How would the thousands of relatives of those killed in 911 or the London bombings feel if they were to find out the police suspected who might be about to do the bombings but because of the suspected bombers human rights they did not act on it? I am sure they will be a few that would let a family member die for the greater good rather than infringe a terrorists human rights but I suspect not many.
In the UK we are not talking about torturing suspects we are talking about powers of arrest and detention and only for a very limited amount of time. Only a handful of people have been subject to control orders but to read the papers you would think it was thousands. Compared to most countries in the world we are one of the fairest when it comes to human rights yet we are made out to be the worst. We still have one of the best police forces in the world and suspects have phenomenal rights in the UK including the right to free lawyers to advise them and many safeguards in place to protect them including the right of appeal.
At some point, hopefully before the next bombing campaign in the UK, our politicians have to decide what is fair and reasonable. At the moment police don’t know where they stand and should they go further than they should to save lives they themselves could end up in prison.
So let’s look at the new measures and see what all the fuss has been about.
What are the new measures?
The recommendations follow a comprehensive review of counter-terrorism powers and legislation which sought to assess whether they were necessary, effective and proportionate. Specifically, it looked at:
· how long terror suspects can be detained before being charged;
· the use of section 44 stop and search;
· the use of Regulation of Investigatory Powers Act (RIPA);
· the banning of groups that espouse or incite hatred or violence;
· the deportation of foreign terrorists; and
· the control order regime.
In some areas counter-terrorism and security powers were found to be neither proportionate nor necessary and recent recommendations are designed to restore British freedoms while enabling the police and security services to continue to protect the public and national security.
Key recommendations include:
· an end to 28 day detention without charge - returning to 14 days as the standard maximum period that a terrorist suspect can be detained before they are charged or released;
· an end to the indiscriminate use of terrorism stop and search powers provided under Section 44 of the Terrorism Act 2000;
· the end to the use of the most intrusive RIPA powers used by local authorities to investigate low level offences and a new requirement that all applications by local authorities to use any RIPA techniques are approved by a magistrate;
· a commitment to rationalise the legal basis by which communications data can be acquired and, as far as possible, to limit that to RIPA.
· a stronger effort to deport foreign nationals involved in terrorist activities in this country, while fully respecting our human rights obligations;
· the repeal of control orders and their replacement with a more focused and targeted regime which carries restrictions similar to powers used in the civil justice system; and
· additional resources to the police and security agencies to underpin the effectiveness of the new regime and our commitment to prosecuting wherever possible.
On pre-charge detention, the government concluded that the period terror suspects can be held before they are charged should revert to 14 days and that provision should be made in draft primary legislation for this period to be temporarily increased to 28 days only in exceptional circumstances where the government judges it is essential.
The government proposes to replace section 44 stop and search powers with a more tightly defined power allowing a senior police officer to make an authorisation for stop and search powers where they have reason to suspect a terrorist attack will take place and searches are necessary to prevent it. The ‘necessity’ test replaces the less stringent threshold of ‘expedient’. This targeted measure will also prevent the misuse of these powers against photographers.
On RIPA, the government will deliver the Coalition commitment to prevent local authorities from using these powers unless it is to prevent serious crime and has been authorised by a magistrate.
The government is committed to tackling those who incite or promote hatred and violence, exposing and confronting the bigoted ideology of extremists, and prosecuting those who step outside the law. After careful consideration the review recommends that it would be disproportionate to widen powers to deal with these groups as there would be unintended consequences for the principles of freedom of expression. It therefore proposes to draw upon the wide range of powers already available for tackling racial and religious hatred and public disorder as well as our work to tackle extremism and promote integration and participation.
The review also found that it is both legitimate and necessary to seek to extend arrangements with more countries to deport foreign nationals involved with terrorism.
The government is committed to tackling those who incite or promote hatred and violence, exposing and confronting the bigoted ideology of extremists, and prosecuting those who step outside the law. After careful consideration the review recommends that it would be disproportionate to widen powers to deal with these groups as there would be unintended consequences for the principles of freedom of expression. It therefore proposes to draw upon the wide range of powers already available for tackling racial and religious hatred and public disorder as well as our work to tackle extremism and promote integration and participation.
The review also found that it is both legitimate and necessary to seek to extend arrangements with more countries to deport foreign nationals involved with terrorism.
The government is clear that prosecution, conviction and imprisonment or deportation will always be our preferred method for dealing with terrorists. But in the rare cases where that is not immediately possible, it would be irresponsible to allow these individuals to go freely about their terrorist activities. The review therefore proposes to repeal control orders and introduce a new, more focused regime.
Under the new regime:
· restrictions that impact on an individual’s ability to follow a normal pattern of daily life will be kept to a minimum;
· the legislation will make clearer what restrictions can and cannot be imposed;
· the new measures will have a two year maximum time limit and will only be imposed by the Home Secretary with prior permission from the High Court, except in urgent cases;
· the Home Secretary will need reasonable grounds to believe that an individual is or has been involved in terrorism-related activity – a higher test than under the current regime – and be satisfied that it is necessary to apply measures from the regime to protect the public from a risk of terrorism; and
· a more flexible overnight residence requirement will replace the current curfew arrangements and forcible relocation will be scrapped and replaced with the power to order more tightly-defined exclusions from particular areas and to prevent foreign travel.
The government will now bring forward legislation to introduce the new regime in the coming weeks to give Parliament the opportunity to thoroughly scrutinise this legislation. However we cannot allow the existing regime simply to lapse; to do so would remove all restrictions on the activities of the present subjects of control orders. So while Parliament considers that legislation, we will renew the current regime until the end of the year to allow the replacement to take effect.
The review also recognised that in exceptional circumstances, additional measures may be required. Legislation will be published, but not introduced until necessary, allowing more stringent measures including curfews and further restrictions on communications, association and movement. This would require an even higher statutory test for involvement in terrorism related activity to be met – the balance of probabilities – and the legislation would be introduced to Parliament only when necessary to protect the public from a risk of terrorism.
Lord Macdonald of River Glaven has provided independent oversight of the entire CT Review process, with access to all relevant papers and playing a role in testing thinking and ensuring all the evidence is given proper attention. His report is published today alongside the CT Review report and he makes clear that he found the overall process of the review to be sound.
Alongside the Review of Counter-Terrorism and Security Powers: Findings and Recommendations, the Home Office is publishing a report by Lord MacDonald of River Glaven QC; a summary of the consultation responses and an impact assessment document. All the documents can be found at www.homeoffice.gov.uk
The review took evidence from experts and civil society groups, from communities across the country, and from the law enforcement and security agencies and a summary of the results of this consultation have been published with the full review.
The review was launched in July last year and was asked to look at the issues of security and civil liberties in relation to the most sensitive and controversial security powers. The aim of the review was to ensure that the powers and measures it looked at are necessary, effective and proportionate, and meet the UK’s international and domestic human rights obligations.
What do the politicians say about it?
Home Secretary Theresa May said: “The threat from terrorism remains serious and complex and I have always said that this government’s first priority is to protect public safety and national security. But for too long the balance between security and British freedoms has not been the right one.
“The measures we are announcing today will restore our civil liberties while still allowing the police and security services to protect us. They are in keeping with British traditions and our commitment to the rule of law. I also believe they will restore public confidence in counter-terrorism legislation.”
“The measures we are announcing today will restore our civil liberties while still allowing the police and security services to protect us. They are in keeping with British traditions and our commitment to the rule of law. I also believe they will restore public confidence in counter-terrorism legislation.”
Shadow Home Secretary Yvette Cooper said: “The Tory-led Government’s counter terrorism policy is collapsing into ever greater confusion. Ministers told us that although 28 days pre charge detention would lapse by default at midnight tonight to 14 days, that legislation would be needed and kept on hand to extend this in exceptional circumstances or in an emergency.
“Yet we discovered that the emergency legislation is not available even though the old powers run out at midnight tonight. This is a shocking and cavalier way to deal with our national security. Ministers themselves told us these back up powers were needed in case of emergency, but they have failed to get them ready and give Parliament the chance to look at them or see the evidence.
“Ministers need to tell us urgently what is going on and whether this puts our security at risk. If their own review has shown this emergency legislation is needed, then Ministers need to act immediately to get it ready and in place, in case a crisis arises. Right now we have no idea when this legislation will be ready and it is irresponsible of the government not to be prepared for every eventuality or to be able to react swiftly if emergencies arise.
“Government policy on counter terrorism is vital to the future of our country and needs to protect our national security as well as our historic freedoms. But instead of serious, responsible debate, we have seen chaos, delay and party political manoeuvring within the government.”
“Yet we discovered that the emergency legislation is not available even though the old powers run out at midnight tonight. This is a shocking and cavalier way to deal with our national security. Ministers themselves told us these back up powers were needed in case of emergency, but they have failed to get them ready and give Parliament the chance to look at them or see the evidence.
“Ministers need to tell us urgently what is going on and whether this puts our security at risk. If their own review has shown this emergency legislation is needed, then Ministers need to act immediately to get it ready and in place, in case a crisis arises. Right now we have no idea when this legislation will be ready and it is irresponsible of the government not to be prepared for every eventuality or to be able to react swiftly if emergencies arise.
“Government policy on counter terrorism is vital to the future of our country and needs to protect our national security as well as our historic freedoms. But instead of serious, responsible debate, we have seen chaos, delay and party political manoeuvring within the government.”
In response to an urgent question prior to the new provisions being announced Home Office Minister Damien Green said that the 28-day pre charge detention power would lapse at 00:00 on 25 January, two days prior to the Government’s counter terrorism review. This is due to failure to reach agreement within the Coalition on the issue of control orders, which has delayed the review.
Mr Green said that in the interim between Monday and the review’s suggested new powers, a 14-day limit would apply with emergency legislation laid in Parliament to allow MPs to extend the limit to 28 days in the event of a serious terrorist plot. Yet it seemed at that time Labour knew no emergency legislation has been placed in the library and no timeframe can be provided as to when it will be provided for.
Shadow Home Secretary Yvette Cooper went on to say: “Theresa May must put public safety before politics. The horrific scenes at Domodedovo airport in Moscow bring home again the damage terrorists can wreak, and the dangers that police and security services fight each day. The challenge for democratic governments in the face of terrorist threats must be to protect both our national security and our historic freedoms.
“That is why the Counter Terrorism Review, matters immensely. This Review should be a chance for the Home Secretary to lead a serious debate and build a new consensus. We must update policies and powers in response to ever-changing threats, looking too at new risks, prevention of radicalisation, handling intelligence and the framework of accountability.
“It should also be the moment for serious reflection on difficult measures that have been in place for years. Are they working? And are we striking the right balance between protecting collective security and protecting individual liberties?
“For example, we know that in practice no terrorist suspect has been held for more than 14 days before charge for the past three years. If the best police and security service evidence shows we can reduce the maximum period for pre-charge detention from 28 days with sufficient safeguards, then we should do so.
“Similarly on control orders - the power for the state to place restrictions on suspected terrorists without charge - we will look closely at the evidence which underpins new government proposals. These are exceptional powers and no government would use them in an ideal world. But we have to face the uncomfortable problem of a small number of individuals who cannot be deported or charged but where the police and security services want to prevent further terrorist activity.
“The question is whether there is a workable alternative to the current regime, including more limited restrictions or enhanced surveillance properly funded by the Treasury. As a responsible party in Opposition, our approach is clear: where changes are based on the evidence, and the advice of security experts, in our national interest, we will seek to be supportive.
“But responsible opposition must be matched by responsible government. The Review process has been characterised by delays, disarray and a politicised public debate between different parts of the government.
“For weeks we have read leaks and briefings as Nick Clegg and Theresa May have jostled for position. The final plans are reported by one government insider to be designed so that "everybody will be able to save face". Most recently we have seen the chaotic position of counter-terrorism powers lapsing without any explanation of why or what replaces them. It has been unedifying. As one colleague put it to me, "this Review should be about keeping people safe in their homes, not keeping Nick Clegg safe in his job".
“We want to support the Government in this area but that is made harder if they produce no evidence and indulge in internal briefing rather than responsible debate. Our national security is too important to be dogged by the kind of chaos and horse-trading we have seen within the Government recently.”
Ed Ball Interview
Shadow Home Secretary Ed Balls was due to be interviewed by Constabulary for this issue but three days before the interview he was appointed Shadow Chancellor and his replacement Yvette Cooper was not fully briefed so could not be interviewed prior to our deadline a few days later. However she is willing to be interviewed for a future issue.
Photo of Teresa May and photos of Yvette Cooper with police.
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