It is time for the Prime Minister to recognise that the new legislative clothes he parades before Parliament and the public are no more convincing or effective than the emperor's. In essence they are an illusion which, as the majority of onlookers realised some time ago, afford no protection. I speak of the package of anti-terror proposals in the Terrorism Bill published this autumn.
For the past 35 years, I have participated in numerous trials involving allegations of terrorism and numerous appeals, become familiar with a succession of anti-terror Acts - at first temporary and now permanent - and even had my car blown up outside the Old Bailey in 1973. I therefore have a close interest in what works and what doesn't.
The pattern is horribly familiar. A bomb outrage: innocent civilians are slaughtered and the government of the day feels compelled to posture a tough stance. Within days there is a raft of new measures creating new offences and powers under the heading "Anti-Terror". The statute book is bursting with such legislation. The question that never receives an adequate hearing in the debates which follow is, whether such legislation is even necessary, let alone effective. Conversely, can such legislation be counterproductive?
The short answer is that none of it, nor the facile vagueness of the new clauses, would have prevented what happened on 7 July. No one should be lulled into a false sense of security, and Charles Clarke should be asked how any of the new proposals, combined with all the previous Acts, would have made the slightest difference to not one but two attacks in July.
The practical ramifications for the detention, investigation, prosecution and conviction of actual or potential terrorists are negligible. From 11 September 2001 to 30 September 2005, a total of 895 people had been arrested under the Terrorism Act 2000, but only 23 have been convicted of terrorist offences. This is a pattern that has been repeated throughout the history of this type of legislation from the mid-1970s onwards.
The term "terrorism" is both unnecessary and indefinable. Those intending or committing acts of terrorism are invariably covered by ordinary and readily recognised offences and forms of liability within the criminal calendar. The manifestly ludicrous contortions in the new Bill - encouragement (indirect, Clause 1) is now merged with glorification (Clause 2), dissemination (Clause 3), and preparation (Clause 4 ) - are unworkable, do not improve the ordinary legal framework and risk targeting the wrong people.
Each of these clauses is directed at "terrorism". It is not only superfluous (blowing people up is unlawful), but once consideration has to be given to the objective of the act, different meanings crowd in upon each other. At present, the essential part of the definition reads, "the use or threat of action for the purpose of advancing a political, religious or ideological cause" (although one man's freedom fighter is another's terrorist). Recently the definition has become far more controversial as states go to war, illegally, to advance a political cause such as "regime change" and thereby commit acts of "state terrorism".
The UN and the recently established ICC in The Hague have yet to find agreement, not only on what constitutes the war crime of aggression, but also on what constitutes terrorism. It is these very same divisions that make the glorification clause, even in its modified form, untenable. The story of Samson in the Old Testament, eulogised by Milton, Sejanus: His Fall by Ben Jonson, currently being performed by the RSC and the Guy Fawkes exhibition in the House of Commons might all fall foul of this particular clause. No one will be reassured by the politicians who claim such examples would never be at risk - tell that to the hundreds detained under terrorism provisions, and particularly Walter Wolfgang, apprehended during this year's Labour Party conference.
If all else fails to find favour, there is always "detention without charge". Governments, particularly British ones, seem to think this is the ultimate weapon in the fight against terrorism. Whether it is characterised as internment or not is of little consequence - the effect is much the same. Its use, infamously, in Northern Ireland in the 1970s was a political and practical débâcle. The wrong people are detained and paramilitary forces are provided with a recruiting bonus.
There has been a constant refrain from politicians, attempting to curtail judicial independence, by branding it as interference. This has recently been robustly rejoindered by the new Lord Chief Justice. Nevertheless, the Government has not been deterred and has rejuvenated detention without charge in the 90-day clause. In light of the vigorous opposition shown last week, principally by its own backbenchers, the Government may yet be forced to compromise on this clause and reduce the detention period to something in the order of 28 days. But it is worth remembering that only regimes such as apartheid South Africa have introduced or employed similar provisions as 90-day detention, or even 28-day, without charge. No other European nation, including Spain after the Madrid train bombings, has invoked so long a period, potentially in breach of Article 5 of the European Convention. Despite this, Tony Blair has expressed his determination to push this clause through, exhibiting in his latest public pronouncements a cavalier disregard for the rule of law and due process, relying on the politics of fear as reason for this move.
Detention is justified now on the basis that the police need more time to sift the material. Assertions of this kind in a briefing document, made available to the Home Office by the Assistant Commissioner, Andy Hayman, are seriously misleading. The first case study cited is Operation Springbourne 2002-5 - the Ricin Case, as it became known later.
MS, a defendant in the trial, was originally charged with terrorist offences in September 2002. He was detained in Belmarsh. In early 2003, because of further discoveries, he was charged with conspiracy involving ricin. The trial before the jury did not start until September 2004. In all, the police had more than two years to sift the material. What happened here and also often happens in other complex, non-terrorist cases is that holding charges are preferred while further investigation takes place. The prosecution then has the ability to add or amend charges, as they did in Ricin, to serve notices of additional evidence, as they did in Ricin, and seek time to serve their case summary of evidence and defendant participation, which was repeatedly granted in Ricin. MS was acquitted of all charges, as were all co-defendants, save one.
It is therefore erroneous for the police to state they had an impossible time frame in which to "analyse the huge amount of material, to identify the prime conspirators [and what it was they were plotting to do] and to clarify the roles played by each of the suspects". Despite this, the Government has ploughed on regardless - regardless of the jury's verdict, regardless of the rule of law and due process - and detained MS once again on the basis of precisely the same material upon which the jury adjudicated his innocence. The object is to return him to Algeria - a state with a shocking record of human rights violations.
Small wonder that some of the Ricin jury have exceptionally, and courageously, spoken out about the way their verdict has been nullified, and more recently, on Panorama, about the proposals in the Terror Bill. As one of them observed: "Before the trial, I had a lot of faith in the authorities to be making the right decisions on my behalf ... I never really gave it much thought. Whereas having been through this trial I'm very sceptical now as to the real reason why this new legislation is being pushed through." As the words are spoken you can hear another nail being hammered into the coffin of jury trial by minions in the Home Office.
One of the real reasons for 90-day detention is intimidation. The same briefing document constructs a theoretical case study that highlights how 14 days does not afford enough time to crack the silence of interviewees. This has echoes of the days before the Police and Criminal Evidence Act 1984, which produced unreliable confessions, wrongful convictions and miscarriages of justice.
What is overlooked is that the police and the security services already have a vast array of powers, not dependent upon the need for an arrest. At the end of the day, besides obvious changes in British foreign policy, the only way of combating terrorism is by the acquisition of reliable, responsible and specific intelligence. The Regulation of Investigatory Powers Act 2000, as well as a number of other statutes, enable the authorities to engage in phone-tapping, electronic intercepts, decryption of electronic data, eavesdropping, covert surveillance, access to bank accounts and so on. Provided this is conducted in a co-ordinated and systematic manner, it should produce hard evidence at the point of search or arrest.
Assistant Commissioner Hayman claims that there was an intelligence vacuum in relation to both London attacks in July. If so, one wonders what the anti-terrorist squad, Special Branch and the security services have been up to since the end of the Cold War. But a revealing report compiled for BBC Radio 4's File on 4 last month suggests there was intelligence, with specific reference to covert surveillance and filming of one of the perpetrators of 7 July. The Daily Mirror went further last week, suggesting that all four were under surveillance, but that the security services claimed that they did not pose a threat and therefore called off the operation.
This remarkable assessment underlines the need for a thoroughgoing, urgent and independent internal inquiry before Blair carries out his promise to let the police have what they want. The bankruptcy of his position is akin to his stance over the UN, the war in Iraq and British public opinion in 2003. He is now as out of touch as all the despots he decries.
Michael Mansfield QC is a leading civil rights lawyer, president of the National Civil Rights Movement and head of Tooks ChambersReuse content