BRITAIN'S NEW ANTI-TERRORISM BILL: PUTTING LAW AT THE SERVICE OF POLITICS
On 4 September, the British parliament adopted a package of new anti-terrorist measures. As in 1974, when the death of 19 people in Birmingham fathered the passage of Britain's original anti-terrorist law, the Prevention of Terrorism Act, legislation has again become the embodiment of public outrage over the killing, in August, of 28 people at Omagh, Northern Ireland. Highlighting the shortcomings of acts pursued in anger, the "Terrorism and Conspiracy" Bill has drawn extremely heavy criticism from almost every quarter. This criticism appears to centre around three areas: the ramifications of the Bill's contents; the manner in which passage of the legislation was pursued, and the effects of this new legislation on the Good Friday peace process.
Extraordinary powers; rights violations
Prior to reviewing the new measures, the words of Nick Hardwick, director of the Refugee Council, appear most telling. "We share the horror at the recent bombings and would support measures to stop them. The question is how you define what is terrorist and what does conspiracy involve in practice. The question is where the line is drawn between opposition to oppressive regimes and terrorist acts", Hardwick said.
Examining the Criminal Justice (Terrorism and Conspiracy) Bill itself, the most notable feature is its extremely substantive relaxation of "the rules of evidence" upon which criminal prosecutions are based.
The legislation's strong impact as regards existing concepts of human rights and fundamental freedoms, is highlighted by a coalition of human rights groups. In a rare showing of unanimous alarm, Amnesty International (AI), the Committee on the Administration of Justice (CAJ), British Irish Rights Watch, Liberty, and Human Rights Watch (HRW) - in an umbrella briefing paper - cited the Bill for seven (7) rights violations as defined by the European Convention on Human Rights and the International Covenant on Civil and Political Rights (ICCPR). The reported violations include: the right to be presumed innocent; the right not to be compelled to incriminate oneself; the right to silence; the rights to freedom of expression and association; and the rights to a fair trial and to privacy.
In brief, this legislation will enable authorities to more easily obtain criminal convictions of those accused of being members of a "proscribed organisation", as well as "to convict individuals in Britain for participation in acts abroad". Conviction carries a maximum 10-year jail sentence or an unlimited fine. Further, the court may seize the money or property of a convicted individual if it was "in his possession or under his control" at the time of the alleged offense, and it was in some way an asset of, or to, "the specified organisation".
Their word is law
The first segment of the Bill provides for "conviction for belonging to a proscribed organisation on the evidence of a senior police officer"; specifically, an "officer at or above the rank of superintendent". Thus, "oral evidence" from such a police officer that an individual is a member of a named group will now be admissible in court; but, of and by itself, it will not be sufficient to "commit an individual to trial". However, a "new restriction on the right to silence" arises in relation to the "oral evidence" issue, and taken together, these new measures will provide sufficient grounds to bring an individual to trial.
Specifically, an individual's refusal to answer questions put to them by a police officer would be regarded as "corroboration of the police officer's evidence". Thus, refusing to address a point "later relied on as a defence, or refusal to answer any relevant question during interrogation or later, or a refusal to co-operate with any relevant inquiry", would provide "corroboration" under this statute. In effect, a suspect could be convicted of belonging to a proscribed group on the evidence of a senior police officer alone.
An organisation is subject to being "proscribed" if the relevant Ministers believe it to be "concerned in terrorism connected with the affairs of Northern Ireland, or in promoting or encouraging it...and [it] has not established or is not maintaining an unequivocal cease-fire". Said to primarily target the "Real IRA", the group responsible for the Omagh bombing, the statute's language enables the pursuit of the IRA as well.
A Blank Cheque?
In the aforementioned umbrella briefing paper, AI noted this measure provides a "blank cheque to the RUC [the Royal Ulster Constabulary]" - a force known to have engaged in past "excesses". More alarmingly though, they note that the legislation will "unacceptably shift the burden of proof from the prosecution to the accused". According to AI, the legislation's effect is "contrary to the right to be presumed innocent until proven guilty beyond a reasonable doubt, as recognised in Articles 14 (2) of the ICCPR and Article 6 (2) of the European Convention." Compounding the legislation's rights' impact, Amnesty further notes its violation of "the right not to be compelled to testify against oneself or to confess guilt, as guaranteed by Article 14 (3) of the ICCPR".
Helping to put this criticism in perspective, AI notes that within the last couple months, 120 nations, the UK among them, voted for the establishment of an international criminal court to hear cases, involving the worst of crimes, such as genocide, war crimes, and other such crimes against humanity, and which would - in contrast to this legislation - guarantee the "right to silence" for those so accused.
Seizing the Moment
The second part of the measure, "conspiracy to commit offences outside the UK", is widely believed to be geared to address the complaints of foreign governments which have persistently accused Britain of harbouring terrorists, as well as to make it easier for the courts to deport non-British subjects such as Mohammed Al Masari, the Saudi dissident.
Similar government proposals, to be aired in a consultation paper - not even a bill - were beset with so many concerns that they were shelved last January.
Previous to this measure, in relation to acts pursued abroad, the criminal code was only applicable to "murder, or conspiring to commit murder" in a number of "designated", mostly European countries. But this measure also covers possession of items relating to "the commission, preparation or instigation of acts of terrorism". With this "radical departure" from existing statute, three main areas of concern immediately develop: defining terrorist activity, the evidence required in proving such, and the "unintended consequences" of this legislation.
"Mandela could have been prosecuted"
As regards defining "terrorist activity", this is pursued with a broad "catch all" clause which establishes as actionable the commission of, or participation in, a "conspiracy" to commit any act or "other event" which is an offence under both the laws of the nation in question and the UK. Of particular concern is the statute's applicability - as applied to conspiracy - regarding speech, written materials, and fund-raising, especially, given the subtleties involved in differentiating between "liberation movements" and terrorist groups.
The "dual-criminality test" (an act's illegality in both Britain and the nation in question) is supposed to provide a safeguard, but it will rest with a judge, deciding alone upon questions of foreign law, to provide the possible basis for proceedings.
Further, the legitimacy of evidence originating outside the UK is an important consideration, as is the use of questionable techniques in the development of such domestically (phone taps, informers, etc.). However, prosecutions will be required to have the consent of the Attorney General, with ministers having veto power over the Attorney General's decision. Somewhat noteworthy, this last element appears to exist in acknowledgement of the political overtones of such cases, as well as the disparities existing in law due to "different political and legal systems".
As regards the unintended consequences of the new law, a particularly ironic note is struck in the recent exemption that was included in the bill providing "all crown agents immunity from prosecution under the legislation". Commenting on this, former Labour Cabinet Minister Tony Benn noted a certain level of hypocrisy inherent here. "The message is that when governments commit crimes, it is okay. When anyone else does, it is terrorism", said Benn.
The coalition of rights groups noted their concern over the legislation's potential impact on freedom of expression and association. Citing Articles 19 and 22 of the ICCPR and Articles 10 and 11 of the European Convention, the groups noted how this portion of the legislation stood in "violation" of these articles, and the guaranteed freedoms they provide.
Law...through power or parliament?
The nature of the legislative processes governing passage of these measures raises a number of questions about the duties of parliament as opposed to the prerogatives of the executive branch. With Home Secretary (Interior Minister) Jack Straw in the parliamentary vanguard, Prime Minister Tony Blair's political response to the Omagh tragedy has so far succeeded only in severely straining his relationship with both Parliament and human rights groups. Illustrative of the broad based nature of the parliamentary criticism, rebels from Labour, plus Tories, Liberal Democrats and others, all expressed substantive reservations over how the measures were advanced. Notable among those voicing their concern were: former Northern Ireland secretary Peter Brooke, Conservative; Labour ex-Cabinet Minister and MP Tony Benn, and Conservative former defence minister Alan clark.
Notable in both the parliamentary and rights groups criticism of the government's legislative procedure, was the unavailability of copies of the measures in question prior to six pm on the evening before their review by Parliament. This clearly placed strong limitations on the review process. As noted by an AI briefing document on the legislation, the "lack of adequate discussion about the proposals before their consideration by parliament is itself a cause for alarm".
An outraged Tony Benn stated: "We are being used to rubber stamp what the Government has decided to do...as if we're the Supreme Soviet just summoned to carry out the instructions of the Central Committee." Former Defence Minister Alan clark added that this "is an example of the contempt in which the Prime Minister himself holds this chamber". Similar concerns extended from the House of Commons to the House of Lords.
On a Wave of Public Outrage
After only clearing Commons at the end of a 16 hour session, during which the Bill was prodded forward by repeated recourse to arguments based on the sanctity of safeguarding the peace process, the new anti-terrorism measure was swept into law on a wave of public outrage. Tellingly, while Home Secretary Straw noted how radical elements utilized "appalling and indiscriminate destruction" to throw the peace process "off course", he then proceeded to highlight the wider issues of international terrorism, setting the stage for the international portion of the Bill to "ride the coat-tails" of the domestic legislation into law.
While elements of both portions of the measure had long languished for lack of support, outrage at Omagh provided a viable vehicle for their pursuit, and the minimization of public debate served to aid their passage. However, The Guardian notes that this kind of legislative management has "generated new levels of mistrust towards Tony Blair's style of government".
To sum it up with a quote from the same newspaper: "[The] true nature of this entire measure: putting law at the service of politics, and individual liberties in the hands of a variety of secretaries of state".
Impacting the peace process
Concern is being voiced from many quarters that the new law could damage the peace process. A spokesman for the British civil rights group Liberty said that such anti-terrorism laws "have rarely been effective and have often led to the wrong people being accused and convicted". Pointing to past human rights violations by the RUC, Julia Hall of Human Rights Watch stressed that granting this police force "additional extraordinary powers" would only serve to "seriously undermine the [peace] agreement". To conclude with the words of Tony Benn, the "peace process in Northern Ireland is the thing that has really brought terrorism to an end, the tremendous opposition to violence. That is the most powerful weapon against terrorism".
Jack Rodgers (New York)
Sources: The Guardian, 26.8.98, 2.9.98, 3.9.98, 4.9.98, The Sunday Times, 6.9.98; 'A briefing on the legislative measures proposed by the United Kingdom Government in the aftermath of the Omagh bombing', prepared by Amnesty International, the Committee on the Administration of Justice, British Irish Rights Watch, Liberty and Human Rights Watch, AI document, AI Index EUR 45/16/98, 28.8.98.