The Terrorism
Act 2000 was designed as a consolidating provision, drawing together
previous anti-terror laws into a single code that would not require renewal or
re-enactment (save for one part that related to Northern Ireland). Since the
passage of that Act, the deadly consequences of terrorism have been
dramatically highlighted in the West by the attacks of September 11, the Madrid
bombings, the 7/7 bombings in London and a host of failed domestic and
international plots.
These
incidents appear to have acted as a catalyst for further terrorism
legislation. Though there have been “only” 59 terrorism-related deaths in
Great Britain since 2001, the threat should not be underestimated; the
authorities have been able to prevent a series of plots, and atrocities have
been avoided through the incompetence of the terrorists themselves.
The 2000
Act has been heavily amended by subsequent Acts. While this is a common
legislative practice, it can make parts of the Act difficult to follow.
Furthermore, there have been successful legal challenges to powers introduced
by the 2000 Act (and indeed subsequent Acts). Calls for a consolidation of the
legislation have been heard for some time and now seems an auspicious time to
question whether the legislation is, in the modern parlance, still “fit for
purpose”. A number of issues may arise in the new Parliament. These
include:
- Consideration of the control
order regime established under the Prevention of Terrorism Act 2005.
This is subject to annual renewal, with a vote due in the spring of 2011.
The regime has been subject to successful legal challenge in the courts
and further cases are still ongoing.
- Extended pre-charge
detention. When the legislation was first enacted, section 41 of the
2000 Act provided for 7 days’ pre-charge detention. This was amended to 14
days in 2003 and 28 days in 2006. Further attempts by the previous
Government to extend the length of pre-charge detention were defeated. The
28 day period introduced by the 2006 Act is subject to the further
safeguard of only being granted for one year (renewable). In
2008/09, no terrorism suspects were detained for longer than 14 days
before action was taken.
- In response to a recent
judgment by the Supreme Court in Her Majesty’s Treasury v Ahmed the previous Government
rushed emergency legislation through Parliament, namely the Terrorist
Asset Freezing (Temporary Provisions) Act 2010. This legislation
ensures the temporary validity of certain Orders in Council imposing
financial restrictions on persons suspected of involvement in terrorist
activity. It is only effective until December 2010 and, accordingly,
Parliament will have to consider further measures in due course to ensure
the UK meets its international obligations in this area.
Concerns
have also been expressed about a number of other issues, such as: the
definition of terrorism; the stop and search powers allowed under s 44 of the Terrorism
Act 2000 (the use of which was subject to a successful legal challenge in
the European Court of Human Rights in Gillan and Quinton v
UK, 2010);
and the ability of members of the public to take photographs in public
places. One change, made by the Counter-Terrorism Act 2008,
restricts the ability of people to photograph the police. While the legislation
does not strictly prohibit the practice, it made eliciting, publishing or
communicating information about the police a potential offence, unless the
person concerned had a “reasonable excuse”. There has been some disquiet about
this power, particularly following the death of Ian Tomlinson at the April 2009
G20 protest.
There is
always likely to be some conflict between counter-terrorism legislation and
human rights: by its very nature, the legislation restricts freedom, rights and
in some cases, liberty. It is a long time since Lord Atkinson was the lone
voice, arguing that “amidst the clash of arms, the laws are not silent”. The
Government is now expected to comply with the rule of law, even in times of
war.
The Home
Affairs Select Committee has previously warned against the tendency to rush through
terrorism legislation, noting that in some cases such legislation proved
counter-productive and legislation that was supposed to be temporary often
turned out to be permanent. The current threat level seems unlikely to diminish
any time soon and, accordingly, it becomes harder to justify temporary or
“exceptional” measures. The Home Office has previously discussed the idea
of re-consolidating the terror laws and, given the current difficulties, such a
move is likely to be welcomed. However, it would be naive to think that
any single piece of legislation could address every possible terror threat, and
further controversy is likely in this field.
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