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 http://www.theregister.co.uk/2005/02/23/terror_bill_2005_analysis/

Guilty! New Labour could arrest self under new terror law

By John Lettice (john.lettice at theregister.co.uk)
Published Wednesday 23rd February 2005 17:00 GMT

Tony Blair and the bulk of the Parliamentary Labour Party could (well OK, should) find themselves qualifying as subjects for control orders, under the sweeping powers Home Secretary Charles Clarke and, er, Tony Blair are currently asking them to rush through Parliament. Their offence? Involvement in "terrorism-related activity" as it is defined in the terms of the proposed Prevention of Terrorism Act 2005.

The notion is of course absurd, but it neatly illustrates the absurdity of the entire, outrageous proposal. It considers "the commission, preparation or instigation of acts of terrorism" as constituting "involvement in terrorism-related activity", which seems logical enough, but then it reaches for the broader brush and gets carried away.

Conduct which "facilitates" terrorism-related activity is included (which could again be fair, but it rather depends on where the boundaries of facilitation lie), so is "conduct which gives encouragement" (shouting 'Troops out of Iraq now!' could count, here), and "conduct which gives support or assistance to individuals who are known or believed [yes people, believed - according to the proposed Act, the wording is now "satisfied, on the balance of probabilities"] to be involved in terrorism-related activity."

Anyone considered by the Home Secretary to be covered by any or all of these can have a wide range range of their liberties curtailed by order of the Home Secretary; do not pass court, do not have sight of evidence, do not even think of saying 'beyond reasonable doubt'. It seems probable to us that we could bang up the Labour Party on several of them, but we'll take the last one as an example, considering funding as constituting "support or assistance".

Hello Gerry Adams MP. In December 2001, at the behest of Tony Blair, the Parliamentary Labour Party voted to allow Sinn Fein MPs to draw allowances. They had previously been denied these on the basis that they had declined to swear the oath of allegiance to the Queen, and were (and still are) unable to take their seats in the Commons. The Labour Government nevertheless gave them access to the allowances, its flimsy excuse being that this would involve them more closely in the peace process.

Sherry, Gerry?

More recently, you will have noticed, that Government has been proposing to suspend these allowances, has been claiming that the Provisional IRA is responsible for the recent massive bank raid in Northern Ireland, and that Sinn Fein's representatives remain closely involved with the Provos, and had knowledge of the planning and execution of the raid. Which we think, in the Government's view, makes them "individuals who are known or believed to be involved in terrorism-related activity." Voting them money sounds like support, and inviting them round for chats with the PM doesn't look good. "Can I support you with another sherry, Mr Adams?"

Obviously Charles Clarke isn't going to detain the entire Labour Party, or even Sinn Fein, but the point here is that the Prevention of Terrorism Bill effectively defines an offence as 'anything we say it is.' And this is supported to some extent by Charles Clarke's own stance. He does not at the moment consider that home detention is necessary, but he may think it is in the future, based on evidence he says he has but which he will not disclose. He argues that the current threat is far greater than the threat of the IRA was, hence the 'need' for the legislation in the first place, and again this is based on evidence he professes to have but will not disclose. 'The level of threat is what I say it is. You'll have to trust me on that.'

So whoever is Home Secretary can define the points at which the IRA is a threat, or a partner in talks or any point in between, and neither we nor the legal system can gainsay him. Note that an important part of the wondrous utility of the legislation is the facility to choose not to nick people. This means troublesome civil rights activists can't use the legislation to pursue, say, passing members of the US Government who might have a dubious past supporting Central American or Afghan insurgents.

Clarke's concession yesterday that home detention powers would not be immediately applied is also interesting because of the way it switches the immediate purpose of the legislation over to Blunkett's toy box. At the moment we have ten allegedly dangerous foreigners who're being illegally held in Belmarsh, and without further legislation to detain them they're going to be let out on 14th March. This emergency legislation however is not the emergency legislation that will keep them detained, so they will indeed be let out. It is therefore the other measures of the Prevention of Terrorism Bill that are intended to provide adequate levels of control - they are to be, effectively, lab rats in a control experiment.

As Clarke is giving himself powers to move against practically anyone he chooses, balance (the Home Office describes the proposals as "balanced") surely dictates that he can restrict them in practically any way he chooses too. So the "obligations that may be imposed by a control order... include" prohibition or restriction on possession of specified articles or substances, use of specified services or facilities, the carrying on of specified activities, restrictions on work, place of residence, persons met, places visited, movement, and so on. It's basically 'whatever we specify', so although the services and facilities bit could include use of ISPs, the Internet, email or posting stuff on a web site, it could also extend to writing letters to The Times on concealed scraps of toilet paper.


To enforce all this we have requirements to submit to searches of residence or other premises, and to "co-operate with specified arrangements for enabling his movements, communications or other activities to be monitored by electronic or other means." These include "wearing or otherwise using apparatus approved by or in accordance with the arrangements". The Belmarsh detainees will therefore walk free, but where and how they walk, and what they do, will be defined by Charles Clarke and enforced by a regime of surveillance and tagging.

Considering all of these possibilities, you might feel the 'no home detention' concession is somewhat academic - and you'd be right, because it isn't exactly what Clarke has conceded, and the concession he has made is actually to human rights law rather than to critics. This will become a particularly important area as the use of electronically enforced non-custodial and extra-judicial restrictions develops, so it bears examination.

The Prevention of Terrorism Bill actually says that the Home Secretary "may make a control order imposing an obligation that is incompatible with the controlled person's right to liberty under Article 5 of the Human Rights Convention", but there are conditions that need to be fulfilled. First there must be a "particular public emergency", and there must be a designated derogation for that emergency from Article 5.

Translated, that means that the UK Parliament must have voted under the terms of the Human Rights Act 1998 to derogate, or opt out, from Article 5. The Act allows for this, but only in cases of national emergency. The European Convention on Human Rights also allows for this, but the necessary national emergency is defined as one that "affects the whole population and constitutes a threat to the organised life of the community of which the state is composed."

So Clarke has two problems here, squaring the emergency level with the 1998 Act and the ECHR, and deciding what constitutes restrictions that are incompatible with the victim's right to liberty under Article 5. Locking them up, we are all now apparently agreed, would count, but what else? Clarke himself conceded yesterday that if sufficient restrictions were imposed on an individual they could in sum be viewed as interfering with his right to liberty, but there's no points-weighting system in the Bill, no item is helpfully flagged 'definitely breaches Article 5', so it will require legal challenges to establish where the Act and its application breaches the ECHR.

As tagging and restrictions become more commonplace, there undoubtedly will be such challenges. The Home Office is perhaps not wonderfully placed to resist these. Clarke it would appear currently thinks we do not have a qualifying emergency, while the Home Office's terror FAQ (http://www.homeoffice.gov.uk/terrorism/faq/atcsa_faq.html#10) answers the question, "Does a public state of emergency exist?" with an emphatic "Yes." Wrong kind of emergency, then...

Terrorwatch

In support of the Prevention of Terrorism Bill the Home Office published four briefing documents. These are heavily dependent on evidence they claim to have but won't show us, but there are a couple of statements of fact that can be readily challenged from published information.

For example: "The UK has extensive experience of tracking, disrupting and undermining the finances of terrorist networks." Which we presume is why the Provisional IRA's long-standing money-laundering and racketeering activities are in such manifest bad shape.

Or, in the FAQ, we are told: "Our 'intelligence' only approach, based on decades of dealing with terrorism, brings with it uniquely close co-operation between law enforcement and intelligence agencies." In Northern Ireland, this uniquely close co-operation is widely suspected to have included stealing one another's files and burning down one another's offices (more information at Statewatch (http://www.statewatch.org/news/2002/jun/09ni.htm)).

Document 4 throws us all a lifeline, right at the end. The UK's war on terror, it tells us, relies heavily "on the public's willingness to get on with everyday life in the absence of specific threats." So if we understand that it means we're all holding this ridiculous edifice together by carrying on as if there's nothing happening when, er, there's nothing happening. Well, it's pretty cold right now, so tomorrow seems an excellent opportunity for us all just to stay in bed, and see if the Government falls.