Politics and Terrorism

09:00, 14 - 15 Feb 2007
RUSI, Whitehall, London, SW1A 2ET

Link to map: multimap

 

Human Rights and Terrorism
Rt Hon Lord Falconer of Thoroton

Lord Chancellor and Secretary of State for Constitutional Affairs

Britain, along with democracies around the world, faces a complex, changing and deeply serious threat. It is a threat that has been made all too tragically real in every corner of the globe. Leaving an horrendous litany of terrorist atrocity that needs no repetition to be understood.

Recently the Eliza Manningham-Buller and the Home Secretary have talked about the extent of the domestic threat; police and security services working at near capacity to disrupt 30 active plots, 200 networks comprising 1600 individuals known to be engaged in plotting terrorism, more than 20 ongoing terror trials involving over 80 defendants. This is a sombre picture and a sobering analysis of the on-going threat to the United Kingdom.

Against this backdrop, the primary purpose of Government, any Government, that of protecting the public, becomes ever more difficult to achieve and yet more vital that we do.

How we defeat terrorism, for defeat it we must, I believe will be the defining challenge, not of this Government but of this generation.

A complex threat such as this demands a complex response. And significantly a response that takes into consideration the long term implications of the decisions we take now.

The title of this session is “legislating for terrorism” – although I’d be much happier legislating against it.
Whilst legislation may have its place, we should focus on policy and how and where our legislative response fits into that overall strategy.

For any counter terrorism response, or rather any successful one, is one that protects the public and that will involve considerably more than is contained within the statute book.

What I will seek to argue this morning is that;

Firstly, in over-coming terrorism, policy must come first, the law second.  By this I mean that whilst the response must be lawful the policy-makers not the lawyers must determine that response, and whilst legislation will have its role it will only be a part of the response.

Secondly, that we are in a struggle about values; that will ultimately be decided by winning hearts and minds. And as such we must consider the impact that our counter terrorism policy and our counter terrorism legislation may have on the communities we seek to protect. 

And thirdly, that far from being a straitjacket limiting our ability to defend ourselves, human rights and the Human Rights Act are essential in identifying, defining and protecting the values that we must put to the forefront of the struggle against terrorism.

I believe that we need to get away from the politics of polarization – where you are either tough or soft, with us or against us. Where human rights are seen as a terrorists’ charter

This debate where liberty and security can be traded off against either as if balancing an equation. As I said, this is a complex problem that requires a more nuanced analysis. We must be pragmatic; neither tough nor soft, but right.

Liberty and security are not transferable. Diminution of one does not necessarily lead to the other. We must get away from the false dichotomy in which security and basic freedoms are seen as being in opposition. It is important that we recognise that national security does not automatically lead to the negation of our human rights. Withdrawing individual freedoms must be balanced against the practical purpose that will be served in so doing. Neither tough nor soft, but right.

The answer to overcoming terrorism lies in developing and implementing sound policy. The policy must be in accordance with the law.  But it must be the policy makers not the lawyers who determine the strategy.  And legislative change is likely to be only a part of the policy.   As I said at the outset, the first duty of government is to protect its citizens. And faced with new and changing threats government must develop its response. New steps must be taken in order to meet these changing circumstances and to continue to provide protection to the public. But in doing so, there must be a strategy. A strategy that must be driven by what will provide public protection.

It is entirely obvious that law change is an essential part of this approach. Even before 9/11 our Terrorism Act 2000 recognised that new powers were required from those necessary to combat the IRA. In the light of 9/11 attacks, we took further measures again in the Anti-Terrorism Crime and Security Act 2001, and in the Prevention of Terrorism Act 2005 and the Terrorism Act 2006. Indeed we are discussing in Cabinet what further legislation might be required following the Home Secretary’s review.

 But I would argue that these measures represent only one part of our approach. Our policy should not be led by legislation, or dominated by it.

The activities of the police and the security services, military action abroad, improved international co-operation, effective policy tools to combat radicalisation at home, supporting communities to challenge extremism – these are the ingredients which will bring success. 

We must not look at the law in isolation nor must we underestimate how it affects the other components of a counter terrorism strategy. As the purpose of counter terrorism legislation is public protection we must be mindful of the community effects as well as the short term implications of that legislation.

A balanced and effective response must be one in which we seek to undermine and disrupt terrorism through all lawful means, if necessary by changing the law. 
And it is also one in which we seek to reduce the number of terrorists.

On Wednesday of last week Abu Bakr spoke out on Newsnight against what he considered was “police state against Muslims”. Other than highlighting the irony of the fact that he was free to speak out on Newsnight, I found the comment both ridiculous and depressing.

And we must demonstrate its falseness.  And we must ensure that voices within the Muslim communities also attest to its wrong-ness. 

His comments struck at the core of what is perhaps the most significant challenge in the struggle for the hearts and minds of the Muslim communities in the UK.

It is the deep seated anger at what is perceived to be hypocrisy by the Government. It is a feeling that double standards are applied, a sense of hypocrisy borne out of myth and misunderstanding in which foreign and domestic policies are seen as a co-ordinated effort to subjugate Muslims. One set of rules for Muslims, another for the rest.

It is something felt by many people who would deplore and reject outright the ideology, theology and practice of violent extremists.

Counter-terrorism legislation; control orders, 28 days detention, stop and search are presented by some as legislation specifically designed to target Muslims, for being Muslim.

In this view Belmarsh is a UK Guantanamo, where they wrongly believe that hundreds are locked up indefinitely without charge, without rights, without representation. It is a view in which legislation on glorification of terrorism or support for or incitement to terrorism is a gagging order aimed at Muslims. All elements, it is said, of a wider Islamaphobic agenda.

 All too readily available on highstreets; in youth clubs; the internet; it is not difficult to find literature, websites or demagogues – indeed Bakr described it as “an open fact” - who will link this perceived domestic oppression to international events; double standards applied by the UN with regard to Israel, the action of Britain and the United States in Iraq and Afghanistan designed to oppress Muslims. It is a simplistic narrative with a simple aim – to drive a wedge between Muslims and others.

It is utter, utter nonsense.  But nonsense that has regrettably been allowed to take root.  And it is a myth which we must take every opportunity to repudiate.

Far from our laws being designed to isolate and discriminate, at the heart of our justice system are the principles of fairness and equality. These are values that will not be, and must not be subjugated in the face of the terrorist threat.

And it is of the greatest importance that we demonstrate that both in the laws we pass, and the way they are implemented.

Counter terrorism, as with all legislation, is there for the protection of every law abiding man woman and child in the country – Muslim, Jew, Christian alike. Indeed as the Prime Minister said last month “we have the most comprehensive panoply of anti-discrimination legislation in the world”.

One law for all. This is the principle that underpins our justice system. Which is why we will not consider permitting Sharia law or any other religious law to determine what constitutes criminal behaviour. Parliament sets the law, interpreted by the courts. Allegiance to the Rule of Law is the keystone of our society. It is non-negotiable. Protection under the same law is something that every one of us shares, regardless of region or religion, background or beliefs.
We are all subject to the same rules – something that has been a defining characteristic of our society and fundamental to our values.

Every aspect of our response is, and must be, in accordance with our values
And in the Human Rights Act we have a mechanism by which our common values are given expression and protection under the law.

We have a duty to do what is required to protect the public.  The public must be confident we both take the steps which are necessary to protect the public – and that will inevitably mean if the threat becomes much worse the measures to combat it change.  And that we do so in a non-discriminatory way.

We need to have the confidence to show we approach these issues on a practical basis.  We will change the law where it helps to fight terrorism.  We will change the law to achieve this on the basis we will encroach on the community’s freedoms as little as is necessary to protect us all.

The public rightly expect us to be robust in defending them from attack. We are being, and we will continue to be so. 

And we will always draw the line between targeting those who break the law, and those who don’t.  Yes, we recognise the risk that from time to time the net may go to wide.  But only initially.  Because we build in safeguards.

Take, by way of example pre-charge detention. Debate in Parliament, in the media, across breakfast tables and communities was fierce. Opinion was divided. Government in seeking to introduce an extension to 90 days was fulfilling what it considered and still considers to be its primary duty.

 Given the enormously complicated nature of terrorism investigations, the seamless nature of a threat that could stretch from Hyderabad to Hounslow and back, given the potential for massive devastation it is right that the police are given sufficient time in order to pursue their inquiries. Parliament disagreed with the Government on this occasion, but the Parliamentary consensus stands with 28 days – whether it needs to go further is for another occasion.  

The safeguards allow for a balance to be struck between individual freedoms and the needs of the wider community. And removal of the liberty of terror suspects is not something that is done arbitrarily. It requires regular judicial oversight, initially from a Magistrate after 48 hours, and subsequently by a High Court Judge after 14 days in custody.

At each hearing the CPS must present evidence of why they are requesting an extension, and the judge has a responsibility to review the available information and come to an independent decision. The choice to grant an extension to pre-charge detention is therefore made by a rigorously independent judge.

It is a decision based on striking the balance between individual rights and public protection and whether restrictions on those rights is considered proportionate . It is not decided at the whim of the police or the executive –these are thorough and independent judicial safeguards.

To listen to Bakr and others, young Muslims would be forgiven for thinking that given the furore around the extension to 28 days what the Government had proposed was executive detention; arbitrary imprisonment. We do not do enough to dispel these damaging myths.

The law which was introduced contains the safeguards I have described.  It strikes the right balance.

There is a further safety net which is the HRA, which defines the outer limits of what can be lawfully done. Within these limits the legislature has broad scope, and powers enough.

The safeguards, and the HRA  provides protection for every single individual regardless of background or belief, creed or colour. 

The extension of the maximum period for pre-charge detention to 28 days was crafted in such a way that it can easily be defended against the unfounded allegation that they are specifically designed to target and marginalise Muslims. .

We need to explain our basic commitment to non-discrimination.  But also our determination to take all necessary steps to defend our citizens and our way of life.  If we go too far – which we have not done – then we will damage our chances because we will have got the mix wrong. 

We need an approach which is not driven by lawyers, which recognises that we have to change the law if circumstances change.  But we need to change the law only to the extent necessary to provide protection. 

And we need to factor in the impact on communities and how extremists may use any excuse as a motivating factor to attract others to their cause, and consider what will increase public protection.
 
Legislation in this field has the purpose of protecting the public – of identifying an objectionable  behaviour and a method of preventing it. Or of giving the security forces or the police new tools which makes their ability to fight terrorists more effective.

And we have taken steps as well to make very clear our commitment to a non-discriminatory society, including the introduction of new laws to criminalise inciting hatred against people on grounds of their religion.

There will always be individuals for whom our tolerant, democratic society will be anathema. Just as international terrorism was a feature of global politics before 9/11 and military intervention in Afghanistan and Iraq, factors cited by many as a key driver of support for violent extremism.

The solution ought to be; think what we need to do first and the law second. If there is good justification for that policy, if that response is proportionate, it is very unlikely that it would offend the law.

What the law does not do, in truth, is provide barriers for policies which will work, but it does require there to be legitimate justification for those policies.

What we all demand, not just Muslims, all of us not just Muslims– is consistency in how the law is applied. It is a principle that stems back to the Magna Carta. It is something that is deeply engrained in our national psyche and entrenched in our justice system.

What the HRA does is ensure that, domestically, there is a non-discriminatory, consistent application of the law in the fight against terrorism.

We will not defeat terrorism by the force of arms or the apparatus of the state, courts, police and security services alone. As the Prime Minister has put it “we will defeat it by values and ideas set in opposition to those of the terrorist”.

The HRA operates on a practical as well as an ideological level. It protects us as all as individuals from the state, while defending out values as a society. That HRA allows for a balance to be struck makes ample provision for a robust counter-terrorism response, but it does much more than that it puts out values to the forefront of the fight against terrorism.

Winning hearts and minds will be the most significant factor in that struggle, more so than any piece of legislation. However, given the central importance of this ambition we must look at the impact our policy and particularly our counter-terrorism legislation is having on hearts and minds. We must convince everyone, we must demonstrate to everyone, that human rights are applied universally, fairly and consistently.

HRA ensures that we have fairness - and it keeps our CT response within legitimate, proportionate and balanced bounds and centred around the aim of public protection.

Without fairness we run risk of enflaming prejudices real or perceived- we run risk of radicalising future generations - we forfeit, thereby, public protection, the first responsibility of any government.

Conclusion

Values can inspire and unify – but only if we can show that they are fair and delivered with an even hand. We must hold firm our principles and apply them in practice. When we fail to do so it makes this mission harder.

Terrorism has been described as the ‘weapon of the weak’ – to counter it we must have the moral strength not to debase our values; human rights, freedoms, rule of law. These are our most effective weapons in the fight against terror.

We will not win in spite of these values but because of them.
Thank you.