Learning Lessons from Counter-Terrorism Failures: The United Kingdom's Pre- and Post9/11 Counter-Terrorism Policy

Jessie Blackbourn PhD Candidate Queens University Belfast

Abstract

The Labour government's post- 9/11 counter-terrorism policy for international terrorism has caused much controversy in the United Kingdom due to its similarity to pre- 9/11 counterterrorism legislation for terrorism in Northern Ireland and its willingness to perpetuate the subjugation of civil liberties. Since 9/11 much has been made in academia, the press and within the US administration of the lessons that can be learned from the UKs experience countering terrorism in Northern Ireland, but the validity of this experience must be questioned. This paper will assess the evolution of British governments responses to domestic and international terrorism in the UK since 1969, to draw out common themes from counter-terrorism policy over forty years. The aim will be to determine what lessons (if any) were learned from the experience of countering terrorism in Northern Ireland and how these lessons were applied to the new threat from international terrorism post- 9/11. The focus of this paper will be on how counter-terrorism legislation may subjugate civil liberties and perpetuate the conditions on which terrorism thrives.

Introduction

The enactment of the Terrorism Act 2000 illustrated a watershed in counter-terrorism policy in the United Kingdom (UK). The Act, passed after a lengthy period of consultation1 and an extensive debate in the Houses of Parliament2, marked a departure from the previous policy of enacting emergency or temporary legislation as a reaction to, and in the immediate aftermath of, a particular terrorist atrocity. This new, calm method of legislating for terrorism was shattered in a year by the events of 11th September 2001 and a return to the policy of legislating in a panic with little time for legislative scrutiny prevailed3. The paper aims to address the failures of the UKs post- 9/11 counter-terrorism policy in the context of its pre- 9/11 policy by using the Terrorism Act 2000 as the benchmark for the ideal process of legislating for terrorism. This paper will use the Terrorism Act 2000 to demonstrate that measures that had been deemed ineffective and counterproductive in Northern Ireland during the Troubles were re-enacted by the Labour government post- 9/11 in a state of emergency representing a failure to learn lessons from the past. First this paper will outline the main legislative provisions enacted to counter terrorism in Northern Ireland in order to provide a framework to determine which policies were considered sufficiently unsuccessful to be discontinued under the Terrorism Act 2000. Next the paper will assess the provisions introduced
1

In December 1995 Lord Lloyd of Berwick was commanded by the Secretary of State for the Home Department, Michael Howard MP, and the Secretary of State for Northern Ireland, Sir Patrick Mayhew MP of the then Conservative government to report on the current use of terrorism legislation. His report, Inquiry into Legislation against Terrorism (Cm 3420) was the basis for the consultation document Legislation against Terrorism (Cm 4178) commanded by then Prime Minister Tony Blair in 1998, the recommendations of which became the foundations of the Terrorism Bill 1999/2000. 2 The Terrorism Bill 1999/2000 was presented to the Commons on 2nd December 1999. It passed through three readings in the Commons as well as substantive scrutiny in the Lords and at the committee stage. The Bill received royal assent on 20th July 2000. 3 The Anti Terrorism, Crime and Security Act 2001 was presented to Parliament on 12th November 2001 and received royal assent on 14th December that year. The Bill, which the government took ten weeks to produce and which had been examined in the Joint Committee on Human Rights and the House of Commons Select Committee on Home Affairs, was granted just three days debate in parliament. Douglas Hogg, Conservative MP for Sleaford and North Hykeham expressed concern over this timetable: The right hon. Gentleman made the point that he has taken 10 weeks to contemplate the contents of the Bill. That was indeed right. Given that it was necessary for him to take 10 weeks, does he understand the anxiety in this place that we are being asked to pass the Bill all 114 pages and 125 clauses of it in two days beyond today? Surely that cannot be right. To which Secretary of State for the Home Department, David Blunkett replied: I am not absolutely certain that the length of the debate and the scrutiny given to a Bill are one and the same thing. The length of the debate and our scrutiny of it depend on the availability of time to deal with the aspects of the Bill on which there is genuine disagreement. Disagreeing with something on which there is general approbation is entirely different. It seems to me that the time available in this House and the House of Lords will be used effectively and rightly to scrutinise those proposals that have already received public attention and on which there has been considerable comment. HC Deb Vol 375 c23 19th November 2001.

in the wake of the September 11th terrorist attacks to establish which policies that had been omitted from the Terrorism Act 2000 were reintroduced and re-enacted in an emergency situation. Finally this paper will conclude by drawing on the experience of countering terrorism in Northern Ireland and assessing whether the government paid heed to the lessons it learned in 2000 when it enacted further counter-terrorism legislation in the twenty first century.

Countering Terrorism in Northern Ireland: 1922-2000

Northern Ireland came into being by virtue of the partition of Ireland through the enactment of the Government of Ireland Act 1920 which provided for two home rule parliaments in Ireland; one in the northern six counties of Antrim, Armagh, Derry, Down, Fermanagh and Tyrone, and the other in the remaining twenty six counties of southern Ireland. The existence of the new state was, however, threatened on two fronts: first by the Anglo-Irish Treaty of December 1921 which formally ended the war of independence and established an Irish Free State which Northern Ireland chose to opt out of; and secondly by a campaign of sectarian violence4. In 1921 Northern Ireland was a fledgling state, bordering a country in a state of civil war and with an elected Unionist government fearful of losing territory either following the report of the boundary commission or from the reunification of Ireland through violent armed struggle emanating from the Irish Free State or from republicans within their own borders5. To counter the perceived threat of violent subversion, the Unionist government of Northern Ireland introduced legislation aimed to enhance the powers of the civil authorities in quelling political violence and political opposition. The Civil Authorities (Special Powers) Act (Northern Ireland) 1922 granted the civil authority the power, in respect of persons, matters and things within the jurisdiction of the Government of Northern Ireland, to take all such steps and issue all such orders as may be necessary for preserving the peace and maintaining order 6. The Schedule to the Act, the Regulations for Peace and Order in Northern Ireland created many new
4

See: J.L. McCracken, Northern Ireland, 1921-66, in T.W. Moody and F.X. Martin eds. The Course of Irish History, Dublin: Mercier Press, 1994, p. 315. 5 During the second reading of the Bill that became the Civil Authorities (Special Powers) Act (Northern Ireland) 1922, the Parliamentary Secretary to the Ministry of Home Affairs Mr Megaw stated: It is clear that the so-called Truce was used as an instrument to organise in our area a hostile army for the overthrow of the Northern Government; its intention was to make our work impossible. It has aided powerfully to the conspiracy that is directed against our very existence. Northern Ireland Parliament HC Deb Vol II c89 21 st March 1922. 6 Civil Authorities (Special Powers) Act (Northern Ireland) 1922, 1(1).

offences7 and granted the civil authority widespread powers, including: the power of curfew (Regulation 1); prohibition of alcohol (Regulation 2); prohibition or restriction of meetings, assemblies and processions (Regulations 3 and 4); the rights of access to, and to take possession of land, buildings and property (regulations 6 and 8); the power to close, stop or divert any road, lane, passage, pathway or ferry (Regulation 7); to prohibit any person from approaching military installations (Regulation 14); to enter by force any premises (Regulation 18); to close any premises that are being used for any purpose prejudicial to the maintenance of peace (Regulation 20); to stop, search and seize vehicles (Regulation 21); to arrest without warrant and detain at executive privilege (Regulation 23); and to prohibit the circulation of the press (Regulation 26)8. The Civil Authorities (Special Powers) Act (Northern Ireland) 1922, intended as a short-term solution to the crisis experienced at the creation of the state9 was renewed annually until 1928 when it was extended for five years before being made effectively permanent in 193310. The Act remained on the statute for a further forty years before it was repealed by the enactment of the Northern Ireland (Emergency Provisions) Act 1973. The repeal of the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 did not bring to an end the policy of enacting emergency counter-terrorism legislation in Northern Ireland. Many of the Regulations for Peace and Order in Northern Ireland from the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 were simply replicated under the new Act11, and some new powers were granted, most notably the introduction of trial by juryless

For example, it became an offence to take part in or assist in the promotion or organisations of any exercise or drilling of a military nature (Regulation 5); to injure, tamper or interfere with telegraphic or telephonic equipment (Regulation 11); to possess or use cipher or code for means of secret communications (Regulation 12); to cause injury to railways, tunnels, bridges, viaducts or culverts (Regulation 13); to endanger a police officer or civil authority by the use of a firearm (Regulation 15); to cause mutiny or sedition in the police force (Regulation 16); to obstruct, mislead or withhold information from any person concerned with carrying out the orders of the civil authority (Regulation 17); to promote an unlawful association (Regulation 24); to spread false reports or make false statements (Regulation 25); or to publish the contents of confidential information from the government of Northern Ireland (Regulation 27). Regulations for Peace and Order in Northern Ireland, Civil Authorities (Special Powers) Act (Northern Ireland) 1922. 8 Regulations for Peace and Order in Northern Ireland. 9 Section 12 of the Act states This Act shall continue in force for one year and no longer, unless Parliament otherwise determines. Civil Authorities (Special Powers) Act (Northern Ireland) 1922, 12. 10 The wording of the Civil Authorities (Special powers) Act (Northern Ireland) 1933 stated that The Act of 1922 shall continue in force until Parliament otherwise determines. Northern Ireland Parliament HC Deb Vol 15 c848 14th March 1933. George Boyle Hanna, Unionist MP for Antrim, Larne explained: This does not mean that the Act is permanent. These words contain a clear declaration that it is not to be a permanent part of our statute law. Northern Ireland Parliament HC Deb Vol 15 c848 14 th March 1933. 11 Regulations re-enacted under the Northern Ireland (Emergency Provisions) Act 1973 included: the power to arrest without warrant (Part II, Sections 10, 11 and 12); to enter and search premises (Part II, Sections 13, 14 and 15); to

court. In Northern Ireland in 1973 the key components of counter-terrorism policy included the powers of stop, entry, search and seizure; arrest without warrant and internment; proscription of unlawful associations; and trial by a juryless court. These powers were retained exclusively for the territory of Northern Ireland, but following the expansion of the Irish Republican Armys (IRA) bombing campaign to mainland Britain in 1974 the government passed the Prevention of Terrorism (Temporary Provisions) Act 1974 which extended powers of proscription12 and arrest without warrant13 to Great Britain. The Act also introduced the legislative measure of the exclusion order, which granted the Secretary of State the power by order to exclude a person from Great Britain14. This power had not, for practical purposes, been used in Northern Ireland specific legislation; however it was not a new initiative, the power to exclude persons from Great Britain had previously been granted under the Prevention of Violence Act 193915. Both the Northern Ireland (Emergency Provisions) Act 1973 and the Prevention of Terrorism (Temporary Provisions) Act 1974 were intended, like the Civil Authorities (Special Powers) Act (Northern Ireland) 1922, as temporary laws enacted to deal with a particular crisis, yet they were both re-enacted throughout the twentieth century16. These emergency and temporary laws were not however, successful in preventing further acts of terrorism, as demonstrated by the death of twenty nine people in Omagh on 15th August 1998. The government reacted to the Omagh bomb by introducing the Criminal Justice (Terrorism and Conspiracy) Act 1998 which legislated to alter the rules of evidence in terrorist trials so that
enter and interfere with the rights of property and highways (Part II, Section 17); to enter and search premises including vessels, aircraft or vehicles (Part II, Section 18); to proscribe organisations (Part III, Section 19); to close licensed premises (Schedule 3, Regulation 5); and the prohibition and restriction of the use of vehicles, including the right to prescribe the route of a funeral (Schedule 3, Regulations 2 and 4). It also re-enacted the offences of collecting, recording, publishing , communicating or attempting to elicit information with respect to the police or armed forces that might be of use to a terrorist (Part III, Section 20); and dressing or behaving in a way that arouses suspicion that they are a member of a proscribed organisation (Part III, Section 23). Northern Ireland (Emergency Provisions) Act 1973. 12 Prevention of Terrorism (Temporary Provisions) Act 1974, Part I, Sections 1 and 2. 13 Prevention of Terrorism (Temporary Provisions) Act 1974, Part III, Section 7. 14 Prevention of Terrorism (Temporary Provisions) Act 1974, Part II, Sections 3-6. 15 Prevention of Violence Act 1939, Part 1. 16 Part III, Section 30(2) of the Northern Ireland (Emergency Provisions) Act 1973 stated: The provisions of this Act, except sections 1, 9 and 25 to 31 and Schedule 5 to this Act, shall remain in force until the expiry of the period of one year beginning with its passing and shall then expire unless continued in force by an order under this section. The Act was continued in force, and was re-enacted in 1978, 1987, 1991, 1996 and 1998, before any provisions that were still in force were made permanent in the Terrorism Act 2000. The Prevention of Terrorism (Temporary Provisions) Act 1974 was due to remain in force for six months, unless continued by order. The Act was continued in force, and was further amended and re-enacted in 1976, 1984 and 1989. It was amended by the Prevention of Terrorism (Additional Powers) Act 1996 before any provisions that were still in force were made permanent in the Terrorism Act 2000.

inferences of guilt could be drawn by a court from a defendants silence 17 and a statement from a police officer could be used as evidence of a suspects membership of a proscribed organisation18. Whilst the law provided that neither the inference of guilt from silence or the evidence of a police officer could be used alone to seek a conviction, it did allow for each one to corroborate the other, so that in combination they could be used to obtain a conviction. From 1922 to 2000, emergency and temporary legislation was introduced in the immediate aftermath of terrorist atrocities in Northern Ireland, yet it was perpetually amended, extended and re-enacted until any provisions that were still in force were made permanent under the Terrorism Act 2000. Terrorism in Northern Ireland was not, however, successfully eliminated by the legislation, in fact, evidence suggests that counter-terrorism legislation that severely restricted civil liberties through measures such as curfew, arrest without warrant, internment, internal exile, limits on free speech, association and the press and amendments to the rule of law including restrictions on the right to silence and the creation of juryless courts for scheduled offences, could have been counterproductive and helped perpetuate rather than prevent political violence19.

17

The inference of guilt from silence was not a new measure in Northern Ireland; the Criminal Evidence (Northern Ireland) Order 1988 restricted an accused persons right to silence in four particular situations: failure to mention particular facts when questioned or charged; refusal to give evidence at trial; failure or refusal to account for objects or marks; and failure or refusal to account for presence at a particular place. This allowed a court, judge or jury the right to draw inferences as appeared proper, or to treat the silence of an accused in these four circumstances as, or as capable of amounting to, corroboration of any evidence given against the accused. Criminal Evidence (Northern Ireland) Order 1988, S.I. 1988, No. 1987, 14th November 1988. 18 Criminal Justice (Terrorism and Conspiracy) Act 1998, Sections 1 and 2. 19 Rogelio Alonso interviewed former IRA members in order to understand the ideological motivations behind their decisions to join the organisation. He argues that: There is no doubt that the direct experience of violence provided a crucial motivation for certain activists, who stress that a factor in their decision to join the IRA was the disproportionate stance of the British army from the early 1970s onwards, including the introduction of draconian measures such as internment without trial of those suspected of belonging to proscribed organisations. For example, Brenda Murphy decided to join the IRA when she was only sixteen years old following the dramatic events of 9 August 1971, when internment without trial was introduced and hundreds of people were arrested by the security forces, the majority of whom were totally innocent. R. Alonso, The IRA and Armed Struggle, London and New York: Routledge, 2003, p. 30. Another former republican interviewed by Alonso remembered the British soldiers attitude towards the guilt or innocence of the people interned: that was their idea: if we can lift ten men and get one IRA man in the middle of them, well, thats a success for us, but what it creates is another nine IRA men out there in terms of the families of the people that theyve arrested. R. Alonso, The IRA and Armed Struggle, London and New York: Routledge, 2003, p. 31.

The Terrorism Act 2000: Normalising Temporary and Emergency Legislation

In December 1995 Secretary of State for the Home Department, Michael Howard, and Secretary of State for Northern Ireland, Sir Patrick Mayhew, commissioned Lord Lloyd of Berwick to review the laws governing the prevention of terrorism in the UK. His report, Inquiry into Legislation against Terrorism20 published on 4th September 1996 recommended enacting permanent counter-terrorism legislation similar to the laws then in existence, but with significant changes; notably he concluded that the powers of internment and exclusion should be discontinued, and that the Diplock Court system should be phased out21. Lloyd emphasised that even in the context of a lasting peace in Northern Ireland, the growth of international terrorism and new domestic terrorisms would ensure the need for terrorism legislation to prevent a return to legislating in the aftermath of a terrorist atrocity22. Following the general election of 1997, Prime Minister Tony Blairs Labour government published a consultation document on the form the new legislation should take23. Cm 4178 Legislation against Terrorism stated: When the then Home Secretary Roy Jenkins introduced the first Prevention of Terrorism (Temporary Provisions) Act in 1974, he referred to the powers it granted as unprecedented in peacetime but fully justified to meet the clear present danger Twenty four years later, those temporary powers are still on the statute book with a number of modifications and successive reviewers of the Act have without exception agreed that the threat posed by terrorism has remained real and serious enough to justify renewal of the powers. The Government believes it is time to take a serious and thorough look at what is a continuing but changing threat from terrorism, and to make permanent in law the powers needed to combat it24. The command paper reviewed the content of the emergency and temporary counter-terrorism legislation to consider what was effective and would continue to be effective, and what could be
20 21

Cm 3420 Inquiry into Legislation against Terrorism. Cm 3420 Inquiry into Legislation against Terrorism, p. 117. 22 Lord Lloyd advocated that any future threat from international terrorism should be able to be dealt with within the framework of either the criminal law or the new permanent legislation; however he accepted the possibility of a gross deterioration of a situation that would necessitate emergency legislation, for which he suggested having a measure of pre-planned legislation on the stocks to avoid the problem that the possibility of emergency legislation might be needed in the future places the Government at risk of being pressured into introducing hasty, ill-considered legislation in an atmosphere of crisis. Cm 3420 Inquiry into Legislation against Terrorism, p. 109. 23 Cm 4178 Legislation against Terrorism. 24 Cm 4178 Legislation against Terrorism, 2.1.

discarded. Chapter 4 of Legislation against Terrorism discussed the decision of extending the power of proscription to all terrorist organisations, rather than the then current limitation to organisations engaging in terrorism relating to the conflict in Northern Ireland 25. The power of proscription was enacted as Part II of the Terrorism Act 200026. Chapter 5 of the command paper suggested, as per Lord Lloyds earlier conclusion, that the power to make exclusion orders should not be re-enacted under new permanent legislation27. Exclusion orders were thus omitted from the Terrorism Act 2000. Chapter 14 deliberated on the thorny issue of internment. Though the power for the Secretary of State for Northern Ireland to introduce internment had been removed by the Northern Ireland (Emergency Provisions) Act 199828, the command paper accepted that:

Since the Omagh bombing, there have been a number of calls to reinstate that power (as well as some to take a further step and introduce internment itself). The Government recognises the reasons behind these calls. It does not rule out for all time the reintroduction of the power to intern, but the setting aside of the criminal law in favour of executive action could only be contemplated exceptionally, where the Government were convinced that the measure was likely to prove effective but the Government remains to be convinced of the practical merits of such a measure29. In the context of a non emergency situation the government chose to exclude the power to detain at executive privilege from the Terrorism Act 2000, however, it did replicate the power of arrest without warrant and the period of pre-charge detention of 48 hours plus extension of a further five days after application to a judicial authority from the Prevention of Terrorism Act 197430. Separate provisions for Northern Ireland were also included in the Terrorism Act 2000 due to a lack of progress implementing the Good Friday Agreement31. The Part VII provisions of the Terrorism Act 2000 extended the life of any provisions of the Northern Ireland (Emergency Provisions) Act 1998 which were still in force for a period of five years. When the Part VII provisions were due to expire in 2006 the government considered that the necessary requirement
25 26

Cm 4178 Legislation against Terrorism, Chapter 4. Terrorism Act 2000, Part II, Section 3. 27 Cm 4178 Legislation against Terrorism, Chapter 5. 28 Northern Ireland (Emergency Provisions) Act 1998, Schedule 2 Repeals. 29 Cm 4178 Legislation against Terrorism, Chapter 14, Sections 1 and 2. 30 Terrorism Act 2000, Part V, Section 41. 31 Cm 3883 The Belfast Agreement: An Agreement Reached at the Multi-Party Talks on Northern Ireland.

of a context of lasting peace did not exist in Northern Ireland, and it further extended the Part VII provisions of the Terrorism Act 2000 by the enactment of the Terrorism (Northern Ireland) Act 200632. The Terrorism (Northern Ireland) Act 2006 extended the Part VII provisions which were still in force for a further year with the possibility to extend this for one final year should peace still not have been reached, however this was not necessary, and specific Northern Ireland counter-terrorism legislation expired on 31st July 2007, 85 years after the first piece of legislation had been introduced. Following a lengthy process of consultation and in the context of a situation of relative peace, the UK government enacted counter-terrorism legislation that made permanent the powers of proscription; arrest without warrant; and stop and search of persons and premises; and made permanent the offences of incitement of terrorism overseas and fundraising and money laundering for terrorist organisations. It also repealed some of the more contentious and counterproductive measures from Northern Ireland including the powers of internment and exclusion and it legislated for the discontinuance of the reviled Diplock Court system. Unfortunately, the detached objectivity of the Terrorism Act 2000 was superseded by a return to the policy of hasty legislation in the aftermath of an atrocity following the September 11th terrorist attacks on the United States of America (USA). September 11th and Beyond: The Return to Legislating in a Crisis

During the second reading of the Anti Terrorism, Crime and Security Bill 2001 Conservative MP John Gummer stated:

When I first became a Minister, a wise colleague told me not to sign anything for the first fortnight, because a new Minister is always presented with all sorts of things that the civil servants have been keeping in the cupboard and that no Minister previously was prepared to sign. I have that feeling about the Bill. It contains all sorts of elements that we have failed to pass previously and that are being presented to us again. We should start our consideration of the Bill by distinguishing between those elements that are necessary for the prevention of terrorism and those elements that have been brought in under the guise of an emergency Bill and clearly are not necessary33.
32 33

Terrorism (Northern Ireland) Act 2006. HC Deb Vol 375 cc81-82 19th November 2001.

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Parts 6, 7, 8 and 9 of the Anti-Terrorism, Crime and Security Act 2001 can be seen as a direct reaction to the September 11th terrorist attacks, as they deal with Weapons of Mass Destruction34, the Security of Pathogens and Toxins35, the Security of Nuclear Industry36, and Aviation Security37, all areas of concern in the altered security context of the twenty first century. However, the altered security context was also used to push through provisions which the government had previously failed to pass through parliament as they were deemed to present too great a curtailment on civil liberties38. Most restrictive of the new measures was the Part 4 provisions on Immigration and Asylum which dealt with the issue of suspected international terrorists 39. The Part 4 provisions reintroduced a form of executive detention, granting the Secretary of State the power to issue a certificate under this section in respect of a person if the Secretary of State reasonably (a) believes that the persons presence in the United Kingdom is a risk to national security, and (b) suspects that the person is a terrorist40. Part 4, Section 22 of the Act provided that once a certificate had been issued the Secretary of State could order the deportation of the suspected international terrorist despite the fact that (whether temporarily or indefinitely) the action cannot result in his removal from the United Kingdom because of (a) a point of law which wholly or partly relates to an international agreement, or (b) a practical consideration 41. If a suspected international terrorist could not be deported under Section 22, then Section 23 legislated for the indefinite detention of non-national terrorist suspects42. The reintroduction of a power similar to the internment provisions used in Northern Ireland during the Troubles invalidates the governments judgment in 2000 that executive detention often promoted terrorism in minority communities rather than prevented it. Oliver Letwin, Conservative MP for West Dorset voiced this concern during the debate on the Anti Terrorism, Crime and Security Act:
34 35

Anti Terrorism, Crime and Security Act 2001, Part 6. Anti Terrorism, Crime and Security Act 2001, Part 7. 36 Anti Terrorism, Crime and Security Act 2001, Part 8. 37 Anti Terrorism, Crime and Security Act 2001, Part 9. 38 See: D. Haubrich, Anti-Terrorism Laws and Slippery Slopes: A Reply to Waddington, Policing and Society, 16:4, 2006, p. 409; A.T.H. Smith, Balancing Liberty and Security? A Legal Analysis of United Kingdom AntiTerrorist Legislation, European Journal of Criminal Policy Research, 13:1-2, 2007, pp. 78-79. 39 Anti Terrorism, Crime and Security Act 2001, Part 4. 40 Anti Terrorism, Crime and Security Act 2001, Part 4, Section 21(1). 41 Anti Terrorism, Crime and Security Act 2001, Part 4, Section 22(1). 42 Anti Terrorism, Crime and Security Act 2001, Part 4, Section 23(1) and (2).

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The Home Secretary rightly seeks to protect British citizens from attack by means of the Bill, but if people connected with terrorism are interned without trial in our jails, that may be a potential cause of their friends, relatives, allies and compatriots taking action from the outside to seek to liberate the, through hostage taking, reprisals or other measures. Will the Bill impose an additional risk on us?43 More startling than the potential counterproductive nature of the measures perhaps is the complete inefficacy of the Part 4 provisions44, as well as their general lack of use. In the five year period in which the Provisions were on the statute45 only sixteen people were detained, two of whom voluntarily chose to leave the country, and fourteen of whom remained detained until the provisions expired46. In 2004 the House of Lords ruled that the Part 4 provisions contravened Article 547 and Article 1448 of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms49 despite the derogation entered under Article 1550. The Prevention of Terrorism Act 2005 was enacted to redress the discriminatory nature of the Part 4 provisions, and replaced them with a new system of derogating and non-derogating control orders, which contained sixteen different potential obligations that could be imposed on a suspected terrorist51, including section 1(4)(g) which obligates a prohibition or restriction on his movements to, from or within the United Kingdom, a specified part of the United Kingdom or a specified place or area within the United Kingdom52. This specific control order is reminiscent of the system of exclusion orders previously enacted for terrorism in Northern Ireland and aptly

43 44

HC Deb Vol 375 c49 19th November 2001. The Part 4 provisions were incapable of preventing the terrorist attacks on London in 2005 when four suicide bombers detonated bombs on three underground trains and one bus in quick succession during morning rush hour on 7th July 2005, as the provisions only provided for the indefinite detention of non-national suspected terrorists, whereas three of the four suicide bombers were born in the UK and the fourth held British residency. 45 A sunset clause was written into the Part 4 Provisions of the Anti Terrorism, Crime and Security Act 2001, which caused them to cease to have effect at the end of 10 th November 2006. Anti Terrorism, Crime and Security Act 2001, Part 4, Section 29(7). 46 HL Deb Vol 656 Part 23 cWA108 16th January 2004. 47 Right to Liberty and Security. 48 Prohibition of Discrimination. 49 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, European Treaty Series No. 5. Hereafter: the European Convention on Human Rights. 50 Article 15 of the European Convention on Human Rights allows In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation. 51 For a full list see Prevention of Terrorism Act 2005. 52 Prevention of Terrorism Act 2005, Section 1(4)(g).

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demonstrates the governments disregard for its own findings on exclusion orders during the consultation on terrorism legislation. On the introduction of the Prevention of Terrorism Act 1974 Secretary of State for the Home Department Roy Jenkins claimed that the powers contained within the Bill were Draconian, and in combination were unprecedented in peacetime53. The powers of which he talked included the power of proscription, the power to make an exclusion order, and the power of arrest without warrant and the detention of a suspected terrorist for 48 hours followed by the extension of pre-charge detention to a period not exceeding a total of seven days. Following the enactment of the Terrorism Act 2000, Anti Terrorism, Crime and Security Act 2001, Prevention of Terrorism Act 2005 and Terrorism Act 2006 the powers of proscription, exclusion and arrest without warrant and pre-charge detention for seven days have been re-enacted as permanent powers of proscription, control orders have replaced exclusion orders and arrest without warrant and pre-charge detention has increased to a period of up to 28 days54. These powers must be considered Draconian however the concept of peacetime is open to challenge 55. The UK governments derogation from the European Convention of Human Rights in 2001 based on the declaration that the UK was experiencing a public emergency threatening the life of the nation as well as military intervention in Afghanistan since 2001 and involvement in the invasion and occupation of Iraq since 2003 has created a tension between the normal dichotomy of war and peace which has been exploited by international terrorists who have sought to carry out terrorist attacks on the UK in the twenty first century. Mohammed Sidique Khan, who detonated a bomb on the London Underground on 7th July 2005 killing seven passengers and himself, left a video which stated his motivations for carrying out the suicide attack: Your democratically elected governments continuously perpetuate atrocities against my people all over the world Until we

53 54

HC Deb Vol 882 c35 25th November 1974. During the enactment of the Terrorism Act 2006 as the governments reactive response to the 7 th July 2005 London bombings, the government had proposed increasing the period of pre-charge detention to 90 days which had been defeated by a vote in parliament on 9th November 2005 and a compromise of 28 days was reached. Prime Minister Gordon Browns attempt to further increase the period of ore-charge detention to 42 days during the enactment of the Counter Terrorism Act 2008 passed the vote in the House of Commons by 315 votes to 306 on 11 th June 2008 but later failed to be passed in the Lords. 55 The concept of peacetime could also be contested in Northern Ireland in 1974 as a state of emergency was in existence and the army had been deployed in aid of the civil powers.

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feel security, you will be our targets. And until you you stop the bombing, gassing, imprisonment and torture of my people we will not stop this fight56.

Conclusion The Terrorism Act 2000 was enacted as the UKs first permanent counter-terrorism legislation following a lengthy period of consultation and debate. Its aim was to legislate for the continuing problem of terrorism in Northern Ireland whilst taking into account the growing threat from international terrorism. The Act was intended as the definitive statute to prevent the return to passing emergency and temporary counter-terrorism legislation in the emotional aftermath of a terrorist atrocity. The Terrorism Act 2000 repealed two of the most contentious counter-terrorism measures employed in Northern Ireland during the Troubles: executive detention (internment); and exclusion orders (internal exile), and the Act also provided a timetable for the repeal of the Diplock Court system in Northern Ireland. During the consultative process leading up to the enactment of the Terrorism Act 2000 the government recognised the fact that counter-terrorism legislation enacted in a crisis could further perpetuate rather than prevent acts of terrorism, yet this was forgotten on two occasions in the twenty first century; the government responded to the terrorist attacks on the USA on 11th September 2001 by enacting the Anti Terrorism, Crime and Security Act 2001, a section of which was deemed to contravene the European Convention on Human Rights; and following the suicide bombings in London on 7th July 2005 the government introduced the Terrorism Act 2006 which proposed an increase in the period of pre-charge detention to 90 days. The principal failure in counter-terrorism policy in the twenty first century has been the same failure as in the twentieth century; the governments need to be seen to be doing something in the aftermath of a terrorist atrocity has resulted in a catalogue of illiberal counter-terrorism measures that have been both Draconian and ineffective, and have had the unintended consequence of further radicalising minority communities into acts of political violence.
56

Quoted in: D. Gupta, Understanding Terrorism and Political Violence: The Life Cycle of Birth, Growth, Transformation and Demise, London: Routledge, 2008, p. 102. See also the statement of Nicky Reilly, also known as Mohammed Rashid Saeed Alim, who attempted a suicide bombing of a restaurant in Devon on 22 nd May 2008: Everywhere Muslims are suffering at the hands of Britain, Israel and America. We are sick of taking all the Brutality from you You torture and destroy Muslim lives by taking a father or a son or a brother, even you torture Muslim women, available on: http://news.bbc.co.uk/1/hi/uk/7741766.stm.

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