The Anti–Terrorism, Crime and Security Act 2001: A Proportionate Response to 11 September?

Date01 September 2002
AuthorHelen Fenwick
DOIhttp://doi.org/10.1111/1468-2230.00405
Publication Date01 September 2002
LEGISLATION
Proportionate Response to 11 September?
Helen Fenwick*
Introduction
When Home Secretaries announce the introduction of new draconian anti-terrorist
measures, it is viewed as incumbent upon them to repeat the mantra that they are
merely protecting democracy. So doing now amounts to a ritual dance. In
introducing the Anti-Terrorism, Crime and Security Bill 2001, as a response to the
attacks on New York and Washington on 11 September, 2001, Mr David Blunkett
said: ‘strengthening our democracy and reinforcing our values is as important as
the passage of new laws ... the legislative measures which I have outlined today
will protect and enhance our rights, not diminish them . . .’.1In similar vein in
1999, in defending the introduction of new counter-terrorism legislation, the
Terrorism Act 2000, with immense potential to extend the impact of the previous
legislation, Jack Straw, the then Home Secretary, claimed that he was ‘simply
protecting democracy’ and that extensive measures were needed since ‘by its
nature terrorism is designed to strike at the heart of our democratic values’.2
It is equally commonplace to retort, as many commentators have done on
numerous occasions, that measures aimed at combating terrorism will undermine
rather than defend democracy and that counter-terrorist measures strike at
democratic values if they are disproportionate to the aim of protecting them. It
was said in debate in the Lords on the Anti-Terrorism, Crime and Security Bill:
‘After the outrage of 11th September, the way to defend democracy is not to
dismantle it; it is to strengthen it. Otherwise . .. the Mother of Parliaments is being
asked to put its name to achieving some of the aims of those who carried out the
events of 11th September’.3Those comments echo those of Tony Blair, the then
Shadow Home Secretary, when he observed ‘if we cravenly accept that any action
by the government and entitled ‘‘prevention of terrorism’’ must be supported in its
entirety and without question we do not strengthen the fight against terrorism, we
weaken it’.4John Wadham of Liberty finds: ‘Draconian anti-terrorist laws . .. have
a far greater impact on human rights than they ever will on crime’.5
This article will take the stance that democratic governments are perfectly
entitled to take extraordinary measures if faced with a threat of atrocities on
anything like the scale of those which occurred on 11 September. But since it is
unarguable that counter-terrorist measures such as detention without trial are
ßThe Modern Law Review Limited 2002 (MLR 65:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.724
* University of Durham. I am very grateful to my colleague, Professor Colin Warbrick, for his extensive
comments on an earlier draft.
1 HC Debs 15 Oct 2001 col 925.
2 See The Guardian 14 November, 1999.
3 Lord Corbett of Castle Vale, HL Debs 6 Dec 2001, col 1005.
4 Hansard House of Commons 10 March, 1993 col 975.
5 See n 2.
opposed to democratic ideals, they should be subjected to the most rigorous tests
for proportionality: an immediate and very serious threat should be evident; the
measures adopted should be effective in combating it and should go no further than
necessary to meet it. It will be contended that the new Anti-Terrorism, Crime and
Security Act 2001 (ATCSA) fails to meet the first and last of these tests in respect
of its central provisions. It will also be argued that in ranging beyond what is
strictly required to meet the demands of the situation it comes into conflict with a
number of the guarantees of the European Convention on Human Rights, afforded
further effect in domestic law under the Human Rights Act 1998 (HRA). The
discussion will indicate that the ATCSA builds upon and extends a range of
measures, some of which were introduced specifically in order to combat terrorism
and some of which have no direct connection with it. In particular, the Terrorism
Act 2000 (TA), the Regulation of Investigatory Powers Act 2000 and the Criminal
Justice and Police Act 2001 already provide the state with an extremely extensive
range of coercive and investigatory powers. The same government that introduced
the Human Rights Act introduced these illiberal powers. It will be contended that
the government not only shows little allegiance to the democratic values
underlying the Convention, it is prepared to utilise the Act to afford such schemes
a misleading appearance of human rights compliance. A mounting tension can
readily be discerned between the Labour government’s increasingly authoritarian
measures and the Convention rights, a tension which currently reaches its climax in
Part 4 ACTSA. An exploration of that tension forms the central theme of this
article.
Classifying the provisions
In order to seek to provide a perspective from which to view these contentions in
the context of the new Act this article places the new substantive provisions in
three broad classes. In the first are the provisions of Part 4, which are directly or
indirectly aimed at specific groups of terrorists. The Part 4 measures, especially the
detention without trial provisions based on existing immigration measures, are the
main subject of this article since, although in comparison with other parts of the
Act they are narrowly targeted, they nevertheless represent a highly controversial
response to the 11 September attacks. It is now generally accepted that the attacks
were probably carried out by members of the terrorist group Al Qaida.6However,
the discussion will demonstrate that Part 4, on its face, allows for the internment of
a range of persons unconnected with Al Qaida. In other words, 11 September
appears to have provided the government with an excuse for introducing coercive,
illiberal provisions reaching well beyond those who have such connections.
Second, there are those provisions which are relatively uncontentious and which
either expressly address terrorism as a general phenomenon or have obvious
connections with terrorist activity, including the type of attack used on 11
September. They include Part 1 (introducing further powers to allow for the
forfeiture of terrorist property); Part 2 (governing freezing orders – powers to
6 See ‘Responsibility for the Terrorist Atrocities in the US 11 September, 2001: An Updated Account’
(HMG 15 November, 2001); a spokesperson for Osama Bin Laden, the leader of Al Qaida, is quoted
as advising Muslims in the US and Britain to avoid air travel and high rise towers or buildings. See
video interviews with Bin Laden of 20 October, 2001 and with Ayman al-Zawahiri (Deputy leader of
Al Quaida) broadcast on 15 April, 2002.
ßThe Modern Law Review Limited 2002 725
freeze funds reasonably believed by the Treasury to be related to terrorism);7Part 6
(extending controls over chemical, biological or nuclear weapons of mass
destruction); Part 7 (safeguards regarding the control of pathogens and toxins),
Part 8 (regarding security in the nuclear industry) and Part 9 dealing with
improvements in aviation security. While it might be over-stating the case to say
that these provisions meet the test of going no further than necessary to combat the
threat posed by Al Qaida and similar groups, they clearly relate quite closely to it
and therefore they will not be dwelt upon.
Buried among these general counter-terrorist measures are some that warrant
consideration, such as the provision under section 79 making it an offence,
attracting a maximum term of imprisonment of seven years, to disclose
information which might prejudice the security of any nuclear site. No public
interest defence is provided. The absolute nature of this offence means that, for
example, it appears to present protesters against the use of nuclear power with little
or no leeway for reliance on their Article 10 and 11 rights under the Human Rights
Act.8Section 117, which inserts section 38B into the TA, is equally disturbing.
Section 38B makes it an offence, subject to an unexplicated defence of reasonable
excuse, for a person to fail to disclose to a police officer any information which he
knows or believes might be of material assistance in preventing an act of terrorism
or securing the apprehension or conviction of a person involved in such an act. The
husband, wife or child of an animal rights activist falling within section 1(1) TA
who knows something of his or her activities could commit this offence, raising
Article 8 issues under the HRA.9The offence has retrospective effect under section
38B(6), meaning that it may be in conflict with Article 7.10
In the third group are a range of miscellaneous provisions which relate to
criminal law and criminal justice matters; they have no direct connection with
terrorism and still less with the 11 September attacks. Certain of the new powers
build on those recently introduced under the Crime and Disorder Act 1998, the
Regulation of Investigatory Powers Act 2000, the Criminal Justice and Police Act
2001 and the Electronic Communications Act 2000. In this class there are new
powers to obtain disclosure of information in Part 3; new police powers relating to
identification of suspects in Part 10; a new procedure under section 111 in Part 13
whereby Third Pillar EU measures (relating to police and judicial co-operation on
criminal matters) can become part of UK law via secondary legislation; a new
Code of Practice on retention of communications data – web-sites visited, mobile
phone calls made and so on – in Part 11. Part 5 on race and religion provides for the
concept of religiously aggravated offences in addition to that of racially aggravated
offences already introduced in section 28 of the Crime and Disorder Act 1998. Part
5 originally included clause 38 which introduced a controversial new offence of
stirring up religious hatred. The intention was to amend sections 17–23 of Part III
of the Public Order Act 1986, which prohibit incitement to racial hatred, to include
7 Building on provision in the Money Laundering Regulations 1993, as amended, and the Money
Laundering Regulations 2001.
8 Space precludes full discussion of this issue here: a court’s duty under s 6 HRA might allow a judge to
seek to ensure that the outcome which afforded some recognition to those rights was achieved (see
Percy vDPP (2002) 166 JP 93). Alternatively or in addition the interpretative obligation under
s 3(1) HRA could be utilized to that end, although without a public interest (or ‘reasonableness’)
defence to bite on the court would be viewed as engaging in a legislative exercise.
9 Since Art 8(1) provides a right to respect for private and family life. See n 168 below.
10 Art 7(1) provides: ‘No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence at the time when it was committed .. .’. See also
n 22 below.
The Modern Law Review [Vol. 65
726 ßThe Modern Law Review Limited 2002

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