"UK Terrorism Legislation in an International Context", London 2006
Lord Goldsmith (Labour)
Ladies and Gentlemen. Thank you for inviting me to speak to you today. Terrorism is an international problem and it is therefore critical that the international community works together to find a solution. The breadth of experience and expertise from across the world represented at this important conference is very impressive and I am honoured to have been asked to give the closing address.
The title of my speech this evening is "UK Terrorism Legislation in an International Context". You have asked me particularly to talk about the UK legislative response to the threat of terrorism and that is what I shall focus on.
It hardly needs me to say that terrorism is a huge international challenge. But terrorism is a particular challenge for democracies who must strive to protect individual liberties whilst at the same time ensuring collective security. The need to reconcile these competing demands is the theme of my speech this evening and I hope to explain how the UK has sought to achieve the right balance in enacting its domestic legislation on terrorism.
The lesson of the last few years is surely that no country is immune from terrorism. September 11th provided evidence of the ability of the terrorists to strike at the heart of the western world to devastating effect. Since then in Europe we have had the Madrid train bombings, and then last summer the attacks on the London underground in which four British born suicide bombers killed 52 innocent commuters. Elsewhere the terrorists have struck in Russia, Israel, Jordan, Indonesia, Iraq to name but a few. And we know that the terrorists keep trying to perpetrate more of their deadly outrages.
Of course terrorism is not a new phenomenon. In recent years thousands of lives have been lost to terrorism in Europe, whether as a result of campaigns by indigenous groups such as the IRA or ETA or at the hands of international terrorists, for example, Black September's attack on the Munich Olympics in 1972 or Abu Nidal's attacks on Vienna and Rome airports in 1985. Nor is the bombing of transport systems a novelty - we remember the horror of the bombing of the Paris metro in 1995.
But while terrorism is not new September 11th changed the landscape of terrorism forever.
These new outrages are, I believe, of a different nature from older forms of terrorism and therefore more difficult to tackle: it is not just the scale - over 3000 people of many different nationalities were killed in the Twin Towers - but the aspirations of the terrorists - they would have killed 10 times as many if they could have; the use of suicide bombers - it is very hard to guard against attacks by people who not only do not care if their lives are lost but positively want it; the use of modern technology - to attack: commercial planes and dirty bombs if they could get them; and to communicate: no more do terrorists need to conspire in a darkened cellar where they might be overheard but through encrypted emails and scrambled telephone messages which are much more difficult to intercept. And they are international in nature: modern day terrorism is carried out through a network of cells and different organisations able to call on help from people in different countries. This diffuse and globalised structure presents enormous challenges to national law enforcement agencies.
It is against that background that we must consider the most appropriate steps to protect our citizens from the threats posed by terrorism. The primary responsibility for this in any modern democratic state falls on the government. It is, in the first instance, for governments to assess the need for action. It is their responsibility to protect the security of the people. A government's response to the threat of terrorism will need to be on a number of different levels - new legislation perhaps, a subject to which I want to return later, increased international co-operation, new methods of infiltrating terrorist cells, new ideas as to how to combat the root causes of terrorism.
When he addressed the Institute on 13th February 2006, Gordon Brown outlined a number of the key steps that have to be taken to meet the imperatives of the deeply threatening situation in which we find ourselves: major investment in our domestic frontline forces, building on the world-class capacity of the Metropolitan police, other police forces and the security and intelligence agencies; cutting off the sources of terrorist finance; improving border controls.
It is essential also that we have a robust and well resourced capability of dealing with terrorism both to detect and disrupt and to prosecute. Prosecutors in the Crown Prosecution Service for which I am responsible work closely with the police and intelligence agencies to produce that robust response. We have reorganised the prosecutors into a special counter terrorism division to assist that process. I am determined too that they have all the available tools which is why it is right that we continue to examine making intercepted communications admissible in evidence in court as other countries do. And I will encourage prosecutors to press for tough sentences for terrorists and those who commit criminal offences whilst supporting or encouraging terrorists.
But in all of these initiatives, I believe that it is essential to preserve our democratic way of life, our right to freedom of thought and expression and our commitment to the rule of law; the liberties which have been hard won over the centuries and which we hold dear. These are the very liberties and values which the terrorists seek to destroy, not only through mass murder and destruction of property but also through the climate of fear that their actions create, and are intended to create, and which threaten those values and our way of life.
The bedrock of protection for fundamental rights in Europe is the European Convention of Human Rights. The Convention may be over half a century old and may be criticised as outdated in some respects - for example, in its protection of socio-economic rights - but stripped to its essentials, the Convention remains a statement of all that democracy stands for.
This Government passed the Human Rights Act 1998 which incorporates into our national and domestic law the provisions of the European Convention on Human Rights. In this way our own courts can apply the Convention rights directly, having regard to our own legal, social, economic and political conditions rather than leave aggrieved persons - as was the case before - with the long road to the European Court of Human Rights in Strasbourg.
I believe that this Act has been one of the great achievements of recent years and indeed of this Labour Government. It enshrines in our law the principles that all human beings should be treated with respect, equality and fairness; that they should all be accorded basic fundamental rights.
One of the key themes of the Convention, and one of the reasons I would suggest that it has stood the test of time in the way that it has, is that it is built around the concept of balance. As Lord Bingham, the UK's most senior Law Lord, stated in a judgment of the Privy Council "The [European] Court has ¿ recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention." The Convention took its lead in this respect from the Universal Declaration of Human Rights, Article 29 of which expressly recognises the duties of everyone to the community and the limitation on rights in order to secure and protect respect for the rights of others.
Thus many of the rights under the Convention, like the UN International Covenant on Civil and Political Rights, are qualified and require a balance to be struck against the rights of others or the rights of society as a whole. So the right to freedom of expression is balanced against the right of others not to be defamed or to be the subject of racial hatred. The right to privacy is balanced against the right for the State to intervene in private affairs to prevent or detect crime, or to safeguard the interests of children. While the terrorist does not forfeit his fundamental rights, the Convention recognises that those rights can be restricted in particular circumstances. Rights are not only one-way. And it is not only the rights of suspected persons which are important. The rights and liberties of other citizens are important too. Let us not forget that terrorism, by its methods and aims, has the potential to negate all the individual rights which we all hold so dear.
I would suggest that the greatest challenge which free and democratic states face today is how to balance the need to protect individual rights with the imperative of protecting the lives of the rest of the community. The UK Government is constantly being criticised for striking the wrong balance. Sometimes the criticism comes from the right, from those who see the Human Rights Act as a charter for criminals and terrorists which impedes the executive's freedom of manoeuvre at every turn. Sometimes the criticism comes from the left, from those who see in every Government initiative a threat to civil liberties. Such criticism is inevitable. Furthermore, we must expect that there will be a wide divergence of views on such difficult issues at every level of society including within the judiciary - there are no obvious right answers. As regards an example of a divergence of views within the judiciary, I would take the case concerning the legislation on detention without trial of foreign nationals passed by this Government after 9/11, a case to which I will return later. The Court of Appeal of three judges including the Lord Chief Justice, the most senior judge, found that the legislation was compatible with our obligations. Although the House of Lords found that there was a public emergency threatening the life of the nation, with the exception of one judge, it did not consider that detention without trial was strictly necessary to deal with the emergency. This was a clear set-back but it arose because we were striving conscientiously to deal with the greatest challenge facing our generation.
But although I think it is essential in some cases to be flexible and to be prepared to countenance some limitation of rights in order to ensure collective security, if properly justified and proportionate, there are certain principles on which there can be no compromise. Fair trial is one of those - which is the reason we in the UK were unable to accept that the US military tribunals proposed for those detained at Guantanamo Bay offered sufficient guarantees of a fair trial in accordance with international standards. As you may know having spent time negotiating with counterparts in the United States I was unable to accept that the procedures proposed for the military tribunals were adequate to ensure a fair trial. I am pleased to note that, following this decision, all the British detainees were returned to the UK.
But the existence of Guantanamo Bay remains unacceptable. It is time, in my view, that it should close. Not only would it, in my personal opinion, be right to close Guantanamo as a matter of principle, I believe it would also help to remove what has become a symbol to many - right or wrong- of injustice. The historic tradition of the United States as a beacon of freedom, liberty and of justice deserves the removal of this symbol.
I want to turn now to look at how the UK has attempted to deal with the challenges posed by international terrorism, focusing on the Government's response in terms of legislation, as you have asked me to do.
We had a head-start in terms of legislation due sadly to the situation in Northern Ireland and long experience of terrorism and therefore of terrorist legislation. Indeed when the 9/11 terrorists struck, the Government had recently completed an overhaul of all domestic terrorism legislation resulting in the Terrorism Act 2000. The challenge after 9/11 was to see whether there were remaining gaps to be filled.
One particular concern related to certain foreign nationals in the UK who had no immigration right to remain and who were believed to pose a threat to national security. The problem was as follows. Although there was a right to deport these people under immigration laws, because of international obligations, notably under the European Convention of Human Rights, now as I have said part of our domestic law, we could not deport them to a country where there was a risk that they would face death, torture or inhuman and degrading treatment.
So we were faced with a choice: either to leave them to roam free in the country or to detain them unless and until they voluntarily left the country. Parliament considered the first course gave rise to an unacceptable risk, given the heightened threats since 9/11 and so legislated to provide for detention. Mindful of the need to strike the correct balance between collective security and individual liberties, the legislation included significant safeguards including a right of appeal to an independent judicial body presided over by a senior judge and the right for detainees to have their cases reviewed by that body every three months. Nonetheless, the legislation was very controversial, not least because it involved the UK derogating to a limited extent from its obligations under the European Convention.
As I have already mentioned the House of Lords found that the derogation was not justified under the European Convention and declared the legislation incompatible. But the problem of how to deal with foreigners who were judged to pose a national security risk but who could not be deported because of the risk that they would be subject to ill-treatment on their return still remained and still does remain. The Government's response has been threefold. First, in the Prevention of Terrorism Act 2005 the Government took new powers to impose control orders. As with so much of the UK's legislation on terrorism, the 2005 Act was very controversial - it was only passed after all night sittings of Parliament in which the House of Commons and the House of Lords passed the legislation back and forth with amendment and counterproposal before finally hitting on a compromise. Control orders are available wherever there is a reasonable suspicion that an individual is involved in terrorism and it is considered necessary to impose the order to protect the public from the risk of terrorism. A whole range of obligations may be imposed by means of a control order, for example, a restriction that an individual stay in his home for a certain number of hours per day and a prohibition on use of the telephone and internet. However, very importantly, unless the Government makes a new derogation from the European Convention, - which it has not sought to do - a control order cannot be used to impose house arrest or any other obligations that together amount to a deprivation of liberty. In short without further action by the Government and Parliament this Act does not authorise house arrest.
Just before Easter, a Judge of the High Court declared the control order legislation to be incompatible with the European Convention on the basis that there was a breach of the right to a fair trial before an independent and impartial tribunal. The judge's main concern was that the court only had power to review the decision of the Home Secretary to make the order rather than being able to take its own decision and furthermore in reviewing the Home Secretary's decision, it was limited to considering only the material that was before the Home Secretary at the time of the original decision.
According to one UK human rights organisation, Liberty, the effect of the judgment is that the policy on control order "is in tatters" and constitutes another indictment by the courts of the Government's anti-terror policies. I disagree. First, this is only a first instance decision which will be appealed. Second, and more fundamentally, the legislation has been declared incompatible on a procedural point, namely the level of scrutiny which the courts must apply when considering the decision of the Home Secretary. The heart of the policy on control orders - namely the protection of the public from the risk of terrorism by means of civil orders and the use of secret intelligence to make out the case - is untouched.
Turning away from control orders, the Government's second response to the House of Lords decision I referred to earlier has been to negotiate memoranda of understanding with the various Middle Eastern and North African countries to which we would like to be able to deport the foreigners who pose a risk to the UK's national security. As I explained, we cannot deport these individuals if there are substantial grounds for believing that there is real risk that they will face ill-treatment on their return. The idea behind the memoranda is that the countries concerned should give certain non-legally binding guarantees about treatment on return, thus minimising the risk of ill-treatment. So far, memoranda of understanding have been concluded with Jordan, Libya and Lebanon, and negotiations continue with other countries. A number of people are detained pending deportation on the back of these memoranda of understanding, and the extent to which we can rely on the memoranda vis-à-vis risk of ill-treatment is in the process of being tested by the courts. Four of the Algerian detainees have recently indicated a wish to return to Algeria without waiting for the outcome of the proceedings.
Some argue that by negotiating Memoranda of Understanding the Government is seeking to undermine the absolute prohibition on torture contained in the European Convention on Human Rights and indeed other human rights instruments. I think that is unfair. It is an example of the Government striving to achieve the right balance between collective security and fundamental liberties, in this case it has sought to negotiate Memoranda of Understanding with the countries concerned to guard against risks such as torture. As to the argument that such memoranda would not be worthwhile, I cannot do better than quote the UK's independent reviewer of terrorism legislation, Lord Carlile of Berriew QC, who said in a recent report: "It really is a counsel of despair to suggest that no verifiable or satisfactory agreement can ever be reached with apparently recalcitrant countries ."
The Government's third response to losing the derogation case in the House of Lords relates to the European Court of Human Rights in Strasbourg. The problems that I have been describing stem from a case called Chahal v UK. The case concerned a Sikh extremist who claimed that he would face torture if deported from the UK to India. The ECtHR held that the only relevant question was whether there were substantial grounds for believing that there was a real risk of ill-treatment on return. The deporting state was not permitted to take into account the national security risk posed to its own nationals. The UK Government has intervened in a Dutch case pending before the ECtHR which raises the same issue as Chahal. The Government (alongside a number of other intervening Governments) argues that the effect of Chahal is to require a state to ignore national security considerations, thus ignoring the human rights including the right to life of its own citizens. The Government's position will be that instead a balance should be struck with all relevant issues taken into account, including of course the right of the deportee not to be subjected to ill-treatment on his return. So it wants to ask the European Court to reconsider its jurisprudence.
I should make clear that intervening in this case does not mean rejecting the proposition that the rule against torture is absolute. The basic principle - that a state must not in any circumstances subject those within its control to torture or inhuman or degrading punishment - is surely right. It is not an optional part of the Convention - it is at its core and no derogations are permitted and there is no balancing test.
But should the prohibition on torture apply in the same way when assessing the extent of a risk that ill-treatment might take place at the hands of another state? Was it really intended by those who drafted the Convention that considerations of the safety of other citizens could not be taken into account in such circumstances when the issue is whether a foreigner should be admitted here or allowed to remain? It is salutary to note that those who engage in acts of terrorism are explicitly excluded from the protection of the Refugee Convention, drafted at around the same time as the ECHR. It seems a surprising outcome that under the ECHR participation in acts of terrorism has effectively become a trump card.
Let me be clear. The UK Government is not proposing that the prohibition on torture should not apply to those who face deportation, nor that the extent of the risk to them should be ignored but rather that the national security risk posed by such people should be taken into account along with all other factors. To do otherwise affords no weight whatever to the rights of those whose lives might be significantly protected by the deportation of someone believed to pose a terrorist threat.
From what I have said so far, you might come to the conclusion that (1) the main threat to the UK's national security comes from foreign nationals and (2) the best way of dealing with the threat is by deportation. As regards the nationality of terrorists, we know only too well following the London attacks that we have plenty of home grown extremists. They cannot be deported. But in any event, I firmly believe that individuals who are involved in terrorism should be dealt with by means of the criminal law wherever possible even where deportation is an option. Of course, in the some circumstances - and those of you who follow UK domestic politics will understand the reference - the use of the criminal law followed by deportation is the right course of action.
Turning now to the specifics of the Terrorism Act 2006, among the many measures which Act contains is one to deal with those who publicly celebrate the acts of terrorism whilst claiming to reject violence themselves and refraining from directly inciting others to commit acts of terrorism. Such people seek to avoid falling foul of the criminal law, although it is often a close run thing, while making statements that the vast majority of right-thinking people find truly abhorrent. More importantly, they contribute to a climate in which those who are vulnerable to radicalisation are told that terrorist acts are to be glorified and, by implication, emulated.
A growing consensus was emerging before the appalling attacks on London of 7th July that action against such people needed to be taken, although those attacks undoubtedly provided an additional catalyst. The action took two forms. Firstly, a changed approach to the existing powers to deport and exclude non-British citizens whose presence was considered to be non-conducive to the public good. The Government published an indicative list of unacceptable behaviours including the type of behaviour exhibited by those who glorify terrorism. Such behaviour would, in principle, be regarded as capable of meeting the non-conducive test and leading to deportation/exclusion.
Secondly, the Government proposed a new criminal offence of indirectly encouraging acts of terrorism including by means of glorifying them. This was conceived in part in order to give effect to the UK's international obligations under the Council of Europe Convention on the Prevention of Terrorism, although international consensus did not save this new offence from being subjected to very intense scrutiny right up until the bitter end of the Bill's passage through Parliament.
But the fiercest debate in the UK was reserved for the Government's proposals on pre-charge detention. Under previous terrorism legislation, a person arrested on suspicion of terrorism could be held for up to 14 days pending a police investigation as to whether there was sufficient evidence to charge him with an offence. But as the European Court of Human Rights said in the case of Brogan v UK : "the investigation of terrorist offences undoubtedly presents the authorities with special problems". And it was proposed that the period of pre-charge detention should be increased to three months in order to deal with the complexity of modern terrorism investigations: the international spread of the investigations and the consequent need for liaison with foreign agencies; the problems of computer decryption; foreign language documents; very large networks etc. I believe a convincing case was made that the period of 14 days could be inadequate and that an extension was justified subject to robust judicial control. In the event the House of Commons accepted the need for some extension to the period but rejected the full three months, opting instead for 28 days.
Many of the measures in the Terrorism Act 2006 involve the creation of new criminal offences: the offence of encouragement of terrorism to which I have already referred, the offence of disseminating terrorist publications, the offence of attending terrorist training camps to name but a few. The question is asked: why is it necessary to create new specifically terrorist-related offences to deal with terrorism? Why will the ordinary criminal law not suffice?
To some extent, the ordinary criminal law will suffice. For example, Abu Hamza, an extremist cleric, was recently sentenced to seven years' imprisonment for incitement to murder and racial hatred.
But, as I have explained, there are some features of al Qaeda type terrorism which distinguish it from other forms of crime. The law needs to adapt to take account of this. So, for example, where a suicide bombing is a possibility, the police have to intervene at an early stage. This was not necessarily the case with Irish Republican terrorism where any loss of life was likely to be more limited and some form of warning could be anticipated. Where early intervention occurs, it may be possible to prove that the conspirators were planning some sort of terrorist outrage but little may have emerged of the detail. It is difficult to fit this within the existing English law of conspiracy which requires that a specific offence is planned rather than general wrong-doing. To deal with this, the Terrorism Act creates a new offence of preparation of terrorist acts. Critically, the Act provides that it is irrelevant whether particular acts of terrorist or acts of terrorism generally are being prepared.
It goes without saying that international co-operation and action is essential if we are to defeat international terrorism. During the UK's Presidency of the EU in the last six months of 2005 terrorism was high on the agenda. I pay tribute to the former Home Secretary, Charles Clarke, whose energetic leadership secured a significant initiative concerning retention of telecommunications data - not the content of telephone calls but numbers called, duration of telephone calls, location of mobile equipment and allocation of Internet address etc. Communications traffic and location data is a vital tool in investigating and detecting terrorism and crime. It provides evidence of associations between individuals and events in time and place. It also proves evidence of innocence.
Without this data, many individuals convicted of the most serious offences might have escaped detection and prosecution. But accessing this data can depend upon which communications service provider a suspect, a victim or a witness has used. It can depend upon which country a service is used in.
So I am delighted that the European Parliament and Council of Ministers agreed to harmonise the rules so that service providers are obliged to retain traffic and location data for a year, thus making it accessible for law enforcement purposes.
In conclusion let me summarise: In meeting the difficult task of finding the right balance my personal opinion is that three principles are key. First we should not throw away our respect for the law; on the contrary we should ensure that all our actions are justified and supported by the law. If we were to abandon our commitment to the rule of law we would be giving the terrorists a victory. Second, we should strive to maintain our adherence to fundamental values and liberties; some fundamental rights and liberties are absolute and there can be no compromise on them; for others they may have to give way to other competing interests as the international human rights instruments recognise; but - and this is the third point - where we depart from traditional ways of guaranteeing civil liberties we should be clear that our actions are proportionate to the threat and needed to meet it.
Fundamental rights must be protected if we are to preserve our democracies. But given the current threat to our national security we have to be flexible about how we achieve this. The fact that the balance between security and fundamental rights has traditionally been struck in one way does not mean that there are no equally valid approaches. We need to keep searching for those approaches, liasing with and drawing on the experience of other democracies facing the same challenge from across the world. Finding this balance is a difficult task. But giving up is not an option.