Finding an Enemy

Conor Gearty

  • Legislation against Terrorism: A Consultation Paper. CM 4178.
    70 pp, £9.95, December 1998, ISBN 0 10 141782 9

In the last week of July 1939, just before the summer recess, a hitherto unannounced Bill was sprung on the House of Commons. It was said by the Government to require immediate enactment, and was duly passed by the lower House in two days, becoming law a couple of days later, after an afternoon amble through a supportive House of Lords. It was the Irish in general, and the IRA in particular, who provided the explanation for this contrived panic, which could not be justified even from statistics available at the time. (The worst IRA atrocity of this period, the killing of five people in Coventry’s main shopping area on 25 August 1939, came after, not before the Act.) In the six months to July, the police had managed to bring 66 suspects to trial for offences connected with IRA attacks without this emergency law.

Under the terms of the new Prevention of Violence (Temporary Provisions) Act 1939, anyone suspected of being involved in the preparation or instigation of acts of violence ‘designed to influence public opinion or Government policy with respect to Irish affairs’ was liable to be refused entry to Britain, to be expelled if they were in Britain already or, as a liberal concession, to be forced merely to register with the police. To escape the law’s clutches, an Irish resident in Britain had to show that he or she had been resident there during the preceding 20 years, a near impossible task for many, particularly given the lack of border controls between the two countries. At the last moment, as the Bill was going through the Lords, the Government threw in an extra power of arrest and detention for up to seven days without charge. The clock was ticking towards the holiday break, and the Home Secretary Sir Samuel Hoare, referring to recent acts of violence, claimed to have ‘been told that if we had had these powers two days ago it is very likely that we might have forestalled one or other ... of those outrages’. In the first two months after the Act was passed, 113 expulsion orders, 25 registration orders and ten prohibition orders were made, and by the end of May 1940, a total of 167 expulsion orders had been made, statistics which ignore the substantial emigration of the Irish from Britain following the Act. Originally due to expire on 28 July 1941, it was kept in force until the end of that year under wartime powers and did not disappear completely from the statute book until 1973.

During the second reading of the Bill, Hoare had talked knowingly about the IRA’s ‘ “S” Plan’, under which it seemed the organisation planned to attack the UK’s drainage system, water supply and electricity grid and even to blow up the Houses of Parliament. Inevitably, this made headlines. But on Hoare’s own admission the authorities had had the IRA document since ‘about the beginning of the year’, so why the sudden urgency? Why had action been left until the last four days before the summer recess? There were also dark mutterings from Hoare about the IRA being ‘actively stimulated by foreign organisations’, on which point he asked members ‘not to press for details’. It was naturally thought he was referring to Germany. In fact, he just meant the reliably Anglophobe Irish Americans, and Cabinet papers now reveal that even their involvement probably amounted to no more than fund-raising. But this talk of malicious masterplans and hints of Nazi support had the desired effect, winning round not only the Government backbenches but also the opposition parties to support for the measure, and thereby effectively neutering Parliamentary opposition in the face of a ‘national crisis’.

On 1 April 1996, the Monday of Easter week, the then Home Secretary, Michael Howard, made a surprise statement full of foreboding about imminent IRA violence and the need for immediate legislation to prevent it. Various lacunae in the law had been discovered which it was now suddenly deemed essential to fill. Naturally, having left everything so late, time was of the essence: the Home Secretary said that it was vital to act even if only one life were thereby to be saved. Behind the scenes there was mention of an imminent IRA campaign to commemorate the 80th anniversary of the Easter Rising. Suitably cowed, the Commons passed the whole Bill in just one day, the day after it had been first mentioned. The Lords trotted behind and the measure was law by Wednesday, just in the nick of time, Parliament having already long ago decided to rise by Easter Thursday.

New and wide police powers to stop and search pedestrians without any prerequisite for reasonable suspicion were achieved by this speedy legislative process, but there was no upsurge of violence. Maybe the searches immediately initiated under the Act (if there were any) did the trick; perhaps even the mere possibility of them forced the IRA to call off their planned campaign of violence. Maybe there was no campaign, it not being the 80th anniversary of the Rising after all (Easter being a movable feast). None of this matters anymore; the police have their powers. And IRA or no IRA, they are regularly exercised. During 1997, 43,700 stops and searches were made by the police in England and Wales under the anti-terrorism legislation. In 1998, the year of the Belfast Agreement, there were 15,400, generating 316 arrests – about a 2 per cent success rate.

When the then Leader of the Opposition was questioned about his support for this Bill, Tony Blair said that it was the sort of thing Labour might themselves have to do in government. In fact, within eighteen months of becoming Prime Minister, he had gone one better, pushing through the Criminal Justice (Terrorism and Conspiracy) Act 1998 in two days. On this occasion Parliament was recalled, and persuaded (via the usual guillotine motions and talk of crisis after the Omagh bomb) to authorise not just new legislation covering Ireland but also additional provisions designed to tackle the ‘problem’ of ‘international terrorism’. Under the terms of these clauses, which had nothing to do with Northern Ireland, it would henceforth be a serious offence to plan criminal acts abroad – even where the ‘abroad’ at issue was a totalitarian or authoritarian state and the planners of the ‘crimes’ were seeking justice or democracy.

No member of either House had the first clue what he or she was voting on. The Bill had not been made available for scrutiny until 5.50 p.m. on the evening before the Commons debate. In the words of the independently minded Conservative Richard Shepherd, all we ‘knew about the Bill was what I believe the country will come to detest more than anything – the manipulation, the spin, the press releases and all the covert ways of trying to secure the legislation of this country without reference to Parliament.’ The sections on ‘international terrorism’ secured a place in the law for provisions similar to those in an earlier private member’s Bill which had failed to command support in the last months of the Major Administration.

In December 1995, the senior law lord, Lord Lloyd of Berwick, was appointed ‘to consider the future need for specific counter-terrorism legislation in the United Kingdom if the cessation of terrorism connected with the affairs of Northern Ireland leads to a lasting peace, taking into account the continuing threat from other kinds of terrorism and the United Kingdom’s obligations under international law; and to make recommendations’. His report has now been made the basis of a Home Office consultation paper, Legislation against Terrorism, which was released just before Christmas (on the same day that UK planes began bombing Iraq). New legislation on terrorism will soon be unavoidable, with the Northern Ireland Emergency Powers Act 1996 due to lapse, and the Prevention of Terrorism (Temporary Provisions) Act 1989 looking increasingly odd as a ‘temporary’ expedient to deal with a crisis that no one can now see.

The anti-terrorism laws which the consultation paper discusses had their origin in the Parliamentary reaction to the Birmingham pub bombings of November 1974. These also precipitated the first Prevention of Terrorism Act, which passed through all stages in both Houses in 42 hours. That Act fuelled the official hostility to Ireland and the Irish which so damaged the lives of Irish people in Britain in the Seventies and Eighties and gave rise to some of the more grotesque miscarriages of justice to have occurred in Britain. Initially a six-month measure, the Act was renewed in May 1975, re-enacted afresh in 1976 and renewed every year thereafter, with fresh legislation superseding earlier versions in both 1984 and 1989. This has been a long-lived temporary emergency. When there has been IRA violence in Britain, the renewal debates in Parliament have pointed to it as evidence for the Act’s necessity, and when there has been no such violence (as was the case during many years), Home Secretaries have argued that the Act must have succeeded in preventing it and must therefore be retained. This charade would have gone on indefinitely under the Tories, but residues of Labour’s traditional hostility to the anti-terrorism laws can still be seen: it has already dispensed with the Act’s worst feature (the power to exclude Irish people from Britain on suspicion of terrorist involvement), and feels a commitment to proceed now with some kind of reform.

The legal edifice that has grown up around the legislation is a far cry from the anti-Irish measure enacted in 1974. In 1983, an independent review of the legislation (conducted by the Rt Hon Earl Jellicoe, DSO, MC, to quote from the title page of his report) recommended that the Act’s seven-day arrest and detention powers be extended to include also persons suspected of ‘international terrorism’. This was the phrase much popularised by President Reagan, to describe the ‘threat’ to the ‘West’ (which included Israel) from Middle-Eastern ‘extremists’. Jellicoe’s own view was that ‘we may be facing this threat for many years to come’. He offered no factual evidence for this opinion. Indeed, there was no empirical basis for his recommendation to internationalise the Act, but the breakthrough was duly made in new legislation the following year. The achievement was of vital significance, as signalling that ‘terrorism’ as a problem extended beyond Ireland in general and the IRA in particular. The first major blow in protecting the legislation from peace in Ireland had been struck.

In 1989, anxiety about the ‘terrorist God-fathers’ precipitated legislation – there was more four years later – which added new powers to aid the investigation of various aspects of what was widely asserted to be the major financial empires that various (unnamed) terrorist leaders had established. At the time, academics and political commentators described the IRA as a racketeering, mafia-like organisation interested only in money, and there were even suggestions from the more enthusiastically on-side ‘experts’ that it had become immersed in international drug-running. Working this wave of orchestrated public disgust like an expert political surfer, MI5 secured in 1989 a legislative remit for its activities which included ‘the protection of national security and, in particular, its protection against threats from ... terrorism’. From this moment on, in the year in which the Berlin Wall fell, the Service was able with statutory justification to switch its energies and resources away from the dying Cold War and towards a more contemporary seam of political and public anxiety. MI5 has since muscled in on the ‘fight against terrorism’ – traditionally largely a police preserve. If there is one rule more important to MI5 than ‘know your enemy,’ it is ‘make sure you have one.’ Because ‘terrorism’ was extremely widely defined in the legislation (as ‘the use of violence for political ends’, including implicitly attacks on property and explicitly ‘any use of violence for the purpose of putting the public or any section of the public in fear’), a great variety of political activists and dissidents came potentially within the Act’s reach.

British-based radical groups were not yet covered by it, however. In 1983, not even Earl Jellicoe had thought that the terrorism laws should be extended to deal with domestic dissent. This omission has meant that over the years the authorities have had to treat groups engaged in environmental, animal rights and other radical campaigns just as they have had to treat organisations and associations engaged in presumptively lawful activities. To the extent that members of such groups have transgressed the law, it has been possible to proceed against them, for criminal damage or conspiracy to cause explosion or whatever. Where such offences have been suspected, the police have been able to arrest, question and search property under warrant in the ordinary way, but they have not been able to take the various short-cuts that the Prevention of Terrorism Act makes available against the Irish and the ‘international terrorists’, in particular the power of arrest on suspicion of terrorist activity.

This ‘gap’ in the law has rankled with the police and the security services. Filling it with ‘domestic terrorists’ is a way of giving a moribund Prevention of Terrorism Act a new lease of life. But who are these domestic ‘terrorists’ about whom we should all be so worried? Not even Earl Jellicoe could spot them. Parliamentary tradition requires that when in doubt a learned judge should be called into the fray. Enter Lord Lloyd, known for his clear and powerful legal mind, which was most recently on display in the first Pinochet decision in the House of Lords, where his dissenting opinion was a model of careful and dispassionate legal analysis. This is not a person, clearly, likely to be caught up in the emotional pandemonium around him.

The Lloyd Report was published in October 1996 and this is what he had to say on the crucial question of whether to extend the terrorism law to domestic dissidence:

There is, in truth, no difference in principle between domestic and international terrorism. From the point of view of the innocent victim killed in a terrorist outrage in the United Kingdom, it makes no difference whether the bomb was planted by an Arab fundamentalist from the Middle East drawing attention to his cause, or a militant member of some animal rights organisation, anxious to impose his will by violence on the United Kingdom Parliament, or some half-crazed anarchist opposed to all forms of government; the terror inspired in the civilian population is the same in all three cases. Happily, the level of domestic terrorism is still quite low. But it may not always remain so. Existing pressure groups might adopt more violent means. New, and more violent pressure groups might be formed. In the well-worn phrase, they might adopt the bomb in preference to the ballot box. For all these reasons it makes sense that the new legislation should contain a definition which covers all forms of terrorism.

This is an unusually contingent evidential base on which to base such a far-reaching change in the law. There is little or no problem now, nothing apparently that the police cannot cope with, but there might be difficulties in the future. How did Lord Lloyd manage to liberate his study of anti-terrorism legislation from the commitment to data and evidence which we may assume has for decades been his stock-in-trade as a lawyer? Naturally, he had not tackled this vast (and for him new) subject entirely on his own. He had by his side a judicial colleague from Northern Ireland, the Hon Mr Justice Kerr. In his letter to the Government when he submitted his report, Lloyd also acknowledged that he had been ‘extremely well served’ by his team of Home Office officials, who had made his ‘task seem so easy and pleasant’.

A weekend seminar had also been quickly arranged for His Lordship and attended by a former Tory Home Secretary; a Scottish judge; the Foreign Office’s legal adviser; the head of MI5; three police officers; a Northern Ireland Office official; and an army general. ‘Balance’ was achieved by also having along a former chairman of Justice; a barrister who had been earlier appointed by Michael Howard to review the terrorism law; and Professor Paul Wilkinson. The latter quickly emerged as Lord Lloyd’s main intellectual crutch.

Volume II of the Lloyd Report, indeed, is an impressive and exhaustive survey by Professor Wilkinson of the historical context of terrorism, the nature of the current threat to the UK and the likely future threat. It is a rare honour for an academic to have his work published as a command paper, but then Wilkinson is the undisputed leader of the now large academic community that has grown up around the subject of terrorism over the past three decades. His authority within government circles is immense.

Wilkinson devotes one and a half of his 108 pages to the crucial question of the nature of the current threat to Britain of indigenous terrorism unrelated to Northern Ireland. Though having a ‘very small indeed’ support base, the ‘tiny’ militant nationalist groups in Scotland and Wales have not ‘disappeared completely’. The evidence for this is to be found in the intimidation ‘aimed at stopping the sale of Scottish properties to English people’ and in the hoax bombs and threatening letters sent to politicians from time to time. This aside, Wilkinson accepts that ‘there is no current evidence that Scottish and Welsh extremists will constitute anything more than a relatively minor law and order problem for the police forces in Scotland and Wales.’ The only other relevant ‘terrorist’ organisations he identifies are those associated with animal rights. While it is accepted that the ‘majority of those involved ... keep firmly within the law and abhor violence’, it is nevertheless stated to be the case that ‘a cluster of small groups such as the so-called Justice Department of the Animal Liberation Front, and the Animal Rights Militia, have crossed the threshold from extra-parliamentary protest and demonstrations to what can only be described as acts of terrorism; incendiary attacks on shops and other premises and letter and parcel bombs.’ The other pieces of evidence relied on by Wilkinson are two attacks on scientists (in Bristol and Porton Down) and the firebombing of shops in Newport on the Isle of Wight, and in York and Harrogate in 1994. It is said that in the year to April 1995, the Animal Liberation Front ‘launched over 100 attacks against people’ but no details of what is meant by ‘attack’ are given, and no illustrations offered other than that ‘booby-trapped parcels’ were sent to Prince Charles. (How many? All at once? What kind of booby trap? Was Prince Charles hurt? Was anyone hurt?) Wilkinson also recounts that an Animal Liberation Front member is ‘reported’ to have sent a leaflet to supporters calling for a campaign of violence: ‘None of the opposition has been killed – that will come.’

This is the full extent of the evidential base from which Lord Lloyd went on to deduce the need to expand the anti-terrorism law. There are shades here of Sir Samuel Hoare and the false assumption, also evident in 1939, that even though the crimes that are being committed are being successfully prosecuted, new powers are nevertheless needed to counter them. But no one has ever suggested that the violent conduct engaged in by groups of the sort described by Wilkinson should somehow be decriminalised. The real question relates to the amount of power the police and security forces should be given to counter the threat which it poses to the stability of the nation. The 1974 Act was a response to a campaign of IRA violence which had involved 86 explosions in Britain in 1973 (one fatality and 380 other casualties) and a further series of attacks in 1974 involving many deaths even before the November horrors of Birmingham, with its 21 dead and 162 injured. These statistics present quite a contrast to Wilkinson’s rather subdued list, not to mention the cumulation of pessimistic hypotheses that Lord Lloyd had to make to come down in favour of extending the terrorism law.

This, however, is what the new consultation paper proposes to do. The Government has ‘come to the conclusion that any new counter-terrorism legislation should be designed to combat serious terrorist violence of all kinds. It proposes therefore that the powers in the new legislation should be capable of being used in relation to any form of serious terrorist violence whether domestic, international or Irish’.

Five short paragraphs precede this conclusion, explaining why it has been reached. First, ‘in the last 25 years the main domestic terrorist threat in the UK has come from militant animal rights activists and to a lesser extent from Scottish and Welsh nationalist extremists.’ ‘Main’ is in this context a disguised comparative indicator: one assault would be the main one, however trivial, where no others had occurred. Second, while it is accepted that the activities of the nationalist groups have ‘considerably diminished’ and will probably ‘decline still further’, there can nevertheless ‘be no absolute guarantee of this’ in the future. Third, ‘animal rights, and to a lesser extent environmental rights activists, have mounted, and continue to pursue, persistent and destructive campaigns.’ No example is given of environmental ‘terrorism’: a libel that sends its own subliminal message of Swampy and other recalcitrant road protestors. Perhaps still anxious about the paltry empirical basis for its proposal, the Government reaches once again to the future for support, stressing somewhat defensively in its fourth paragraph that ‘there is nothing to indicate that the threat they pose will go away.’

This leads into a final section of determined pessimism in which the whole argument takes on an air of unreality, as though its authorship had been appropriated by the combined talents of Nostradamus and Dr Strangelove:

There is also the possibility that new groups espousing different causes will be set up and adopt violent methods to impose their will on the rest of society. In the United States, for example, there is an increasing tendency by individuals and groups to resort to terrorist methods. Some of those opposed to the USA’s laws on abortion have bombed clinics and attacked, and, in a number of cases, killed doctors and nursing staff employed by them. Although there have been no comparable attacks in the United Kingdom, the possibility remains that some new group or individual could operate in this way in the future, threatening serious violence to people and property here.

Once the ‘terrorist expert’ has switched the ground of the argument from what is happening to what might happen, victory is assured. If legislation takes the form the Government intends, a whole new category of political activists will be ensnared in the penumbral world of the ‘terrorist’, where the ordinary rule of law does not apply. This is the prize which some members of the Government are after. Nor are they content with the old definition of terrorism, wide though it is. In its place the Government proposes that terrorism should be redefined as ‘the use of serious violence against persons or property, or the threat to use such violence, to intimidate or coerce a government, the public or any section of the public for political, religious or ideological ends’. This is wide enough, but there is then slipped in a vague statement to the effect that the ‘term serious violence would need to be defined so that it included serious disruption, for instance resulting from attacks on computer installations or public utilities’.

Forget for a moment the examples (the usual alarmist stuff, laced with a touch of modernity) and concentrate instead on the general point. ‘Serious violence’ is to include a wide category of conduct deemed to involve ‘serious disruption’. The implications of this for popular protest are likely to be severe. Any group hoping to influence opinion is bound to want to make an impact, and when does such an impact or likely impact, pursued as it would be ‘for political ... or ideological ends’, come to be viewed by worried officials (or more to the point by the police) as an effort to ‘coerce a government’ and therefore as a form of terrorism? The Government notes that ‘violence that can be described as “politically motivated” may arise in the context of demonstrations and industrial disputes’, though it promises that it ‘has no intention of suggesting that matters that can properly be dealt with under normal public order powers should in future be dealt with under counter-terrorist legislation’. The admission is as significant as the assurance that it elicits is worthless. Of course these powers would not duplicate existing law; their whole point is that they would add to it. Under these proposals, the miners’ strike of the early Eighties would unquestionably have been seen as a form of terrorism, as would, it seems, any dispute that was not purely selfish in intent.

If the Government gets its way, many in the animal rights movement, in various environmental campaigns and on the more radical side of Scottish and Welsh nationalism will find themselves at risk of being treated as suspected terrorists. So, too, will members of any new radical protest movement that might grow up in the future, based on black solidarity for example, or on unemployed workers (as was the case in the Thirties when the National Unemployed Workers’ Movement enjoyed huge support). The trade unions will also be vulnerable. With such a law in place, the issue would not be whether any of these individuals or groups were committing crimes, much less acts of terrorism. The authorities do not want a substantive crime of terrorism, since the last thing they want is for this area to become assimilated to the ordinary law, with its safeguards for suspects and other civil libertarian dimensions. What elements within the state are after, and what makes the stakes here so high and this document so important, are the various administrative powers that become available when terrorism is being investigated.

Once various forms of dissent are brought within the terrorist remit, the financial powers designed to get the ‘terrorist Godfathers’ can be wheeled into operation, to ransack the funds of the protesting groups, for example. The police currently have extra powers to enter and search property, and collect evidence in the course of carrying out terrorist investigations – the ordinary rules protecting certain data from seizure do not apply. Under the present law, temporary cordons can be thrown around particular areas, from which pedestrians and motorists can be excluded, if this is thought to be expedient. Within any such cordon, vehicles can be removed, premises searched and material seized where it is judged likely to be of substantial use.

It is the same story with the extensive stop and search powers that have grown up around the anti-terrorism law. These allow pedestrians and motorists to be stopped and searched in an arbitrary way – that is, there is no requirement for a reasonable suspicion on the part of the police officer in question. All that is currently needed is a general authorisation from a senior officer, which can apply for 28 days and is renewable. The Government believes this system to be ‘sensible and appropriate’. Because it ‘works well and ... is not too cumbersome’, and given the ‘continuing threat to the United Kingdom and its interests from international and other forms of terrorism’, the consultation paper concludes that these ‘powers ... are still necessary’.

If the authorities choose to get really nasty, they will be able to use the power of arrest on suspicion of terrorism which is currently available and which the Government is inclined to retain in any new Act, suitably remodelled. Once arrested as a ‘suspected terrorist’ you are of course not an ordinary criminal: the rule-book is changed accordingly. You can be held for up to 48 hours without access to a lawyer, and thereafter for a further five days – a period the Government are inclined to keep, albeit with judicial scrutiny of the detention after the first two days. Under the present law, an officer of the rank of superintendent or above may authorise the taking of your fingerprints and non-intimate samples without your consent. In certain circumstances, intimate samples may also be taken with consent. These data can be kept by the police even if you are not charged with an offence or are subsequently cleared of one. According to the Government, ‘this provision has proved invaluable in allowing the police ... to build up a database of fingerprints and samples taken from suspected terrorists ... And, if the legislation is to be extended as the Government proposes to include domestic terrorism, the police may well need to extend their database with a view to containing fingerprints and samples from extremists within the animal rights movement and others.’

In the shadows, MI5 will also be busy, discharging its duty under the 1989 Act to protect the nation against this fresh brand of terrorism. In her Dimbleby Lecture in 1993, the then Director-General, Stella Rimington, described terrorism as the Service’s ‘overwhelming focus today’ and boasted of the ‘more than twenty Irish Republican terrorists’ who had ‘been arrested in Great Britain and charged’. Later, she said that ‘some 700 terrorists ... have been convicted’ while ‘many others are awaiting trial’. Surely she meant ‘suspected terrorists’ who had been arrested and who were awaiting trial?

But perhaps not, from her perspective: the presumption of innocence and the provision of a fair trial have never been among MI5’s specialist subject areas; their protection of democracy has assumed other forms. Yet this passage was not only delivered at a public lecture, it was afterwards published in booklet form. Rimington’s words would certainly have been scrutinised in advance by a myriad of government officials. None of them thought to object to the assumption that all suspected terrorists were terrorists. Presumably it did not even occur to them. When we think of crimes, we think of due process and justice as well as just deserts. When we think of terrorism, we think merely of evil and condemn all suspects by association.

The Home Secretary, Jack Straw, recently described the Home Office as having so vast a remit that it was impossible to keep fully abreast of all its work, and that political dynamite could emerge without warning at any time. This consultation paper belongs in that category. Does Straw really intend to unleash the forces of the state, built up over three decades to counter the IRA, on the animal rights movement, road protestors, black and Islamic radicals, trade unions, student activists and Swampies? Or is it just that he has not been attending the dreary seminars in his own ministry where senior military and quasi-military types and their gloomy academic supporters have drawn maps and graphs to prove to themselves and to their judges how imminent the destruction of our way of life is, despite the illusion of domestic tranquillity? The spectacular pessimism of these cheerless men with institutional budgets to protect should not be allowed to turn our already disgraceful anti-terrorism laws on the ‘enemy within’.