The new Anti-Terrorism Bill: what can it mean, if anything?
In the debate today (23 Feb 05) on the government’s Prevention of Terrorism Bill, described by several Labour back-bench MPs and others as the worst and most repressive piece of British legislation for 200 years, Bob Marshall-Andrews QC MP (Lab.), himself no slouch when it comes to interpreting obscure legal language, claimed that it was in effect impossible to discover the meaning of Clause 4 of the Bill which lays down the duration of validity of the ‘Control Orders’ to be made by the home secretary to deprive terrorist suspects of their liberty, completely or partially, without trial. Mr Marshall-Andrews, in a speech containing some magnificently eloquent invective against the Bill, argued that if Clause 4 was unintelligible in English, it would be even more utterly meaningless when translated into Arabic, Urdu or Gujerati. To enable you to match your legal skills against Marshall-Andrews’s, here’s the text of that clause in all its glory:
4. Duration of derogating control orders
(1) A derogating control order–
(a) has effect (subject to subsection (3)) for a period of 6 months beginningwith the day on which it is made;
(b) must specify when that period will end; and
(c) may not be renewed.
(2) Subsection (1)(c) does not prevent the Secretary of State, whenever a derogating control order ceases to have effect–
(a) from exercising any power of his to make a new control order to thesame or similar effect for a further 6 month period; or
(b) from relying, in whole or in part, on the same matters for the purpose of making that new order.
(3) A derogating control order has effect at a time only if–
(a) the relevant derogation remains in force at that time; and
(b) that time is not more than 12 months after–
(i) the making of the order under section 14(1) of the HumanRights Act 1998 (c. 42) designating that derogation; or
(ii) the making by the Secretary of State of an order declaring that itcontinues to be necessary for him to have power to imposederogating obligations by reference to that derogation.
(4) The power of the Secretary of State to make an order containing a declaration for the purposes of subsection (3)(b)(ii) is exercisable by statutory instrument.
(5) No order may be made by the Secretary of State containing such a declaration unless a draft of it has been laid before Parliament and approved by a resolution of each House.
(6) Subsection (5) does not apply to an order that contains a statement by the Secretary of State that the order needs, by reason of urgency, to be made without the approval required by that subsection.
(7) An order under this section that contains such a statement–
(a) must be laid before Parliament after being made; and
(b) if not approved by a resolution of each House before the end of 40 days beginning with the day on which the order was made, ceases to have effect at the end of that period.
(8) Where an order ceases to have effect in accordance with subsection (7), that does not–
(a) affect anything previously done in reliance on the order; or
(b) prevent the Secretary of State from exercising any power of his to make a new order for the purposes of subsection (3)(b)(ii) to the same or similar effect.
(9) In this section–
“40 days” means 40 days computed as provided for in section 7(1) of the Statutory Instruments Act 1946 (c. 36);
“the relevant derogation”, in relation to a derogating control order, means the designated derogation by reference to which the derogating obligations imposed by that order were imposed.
[http://www.homeoffice.gov.uk/docs4/terrorism_bill.pdf]
Bob Marshall-Andrews QC MP 
Perhaps it’s meant to deter terrorists, not to convey information about the duration of Control Orders.
Hardly anyone, from either the government or the opposition benches, had a good word to say about the Bill, and many denounced it in the most damning terms that I can remember being used about a piece of legislation submitted by any government for the approval of parliament. And, as reported on the BBC website, “in their first vote on the plans, MPs approved them by 309 votes to 233, despite opposition from the Tories, Lib Dems and 32 Labour rebels”, a government majority of 76. Mr Marshall-Andrews described the Commons chamber in its performance of its principal task of protecting the country against bad legislation and the abuse of power by the executive as ‘Lilliputian’.
Brian,
Perhaps I’m too optimistic,but today the Parliamentary Joint Committee on Human Rights has added a withering comment to Clarke’s idea that he cannot abdicate his responsibility for national security to the judiciary.
“12. The Home Secretary’s reason for refusing to countenance prior judicial authorisation of deprivation of liberty is that this would be to abdicate to the judiciary the executive’s responsibility for national security, for which it is rightly accountable to Parliament. With respect to the Home Secretary, this is an eccentric interpretation of the constitutional doctrine of the separation of powers. It is a long established principle of the British
constitution that,outside of the field of immigration, the executive has no power to detain individuals without prior judicial authorisation or in circumstances where it is intended to bring the individual before a court as soon as possible for further detention to be
authorised. Both Parliament and the Executive have long accepted and respected the judiciary’s responsibility for the liberty of the individual. To invoke national security to deny that role is to subvert our traditional constitutional division of powers. The Home Secretary’s argument would apply equally to criminal justice: the Home Secretary is undoubtedly responsible to the public for protecting them against crime, but nobody would suggest that it is an abdication of that role for the executive to accept that courts are the appropriate constitutional branch to decide whether particular individuals should be deprived of their liberty.
The battle is not lost!
Yes. All praise to the Joint Committee (of members of the Houses of Commons and Lords) on Human Rights for delivering, in their report yesterday, a damning and surely lethal indictment of Charles Clarke’s monstrous Prevention of Terrorism Bill now before parliament. It’s really quite difficult to see how the Bill can now go through all its stages in both Houses after being subjected to such a torrent of informed criticism from all political directions, although it’s also hard to imagine how Blair and Clarke can drop it without massive humiliation only weeks before an intended general election.
The Joint Committee’s report is on the Web at
http://www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/61/6102.htmIt’s not very long, but well worth reading.
As Tony says, the battle isn’t over yet!
Brian
26 February 2005
Tony, you say that the separation of powers is a long established principle of the British constitution. As you know we do not have a written constitution and there are a number of examples of the Executive taking on judicial functions; tariffs in sentencing, deciding the length of life sentences.There are certainly many other examples post Magna Carta of this fudging of the separation of powers
The American Constitution is so much clearer in separating the powers of the Executive from those of the Judiciary.
It is easy however to ignore the politics of all this.Blair wants to paint Howard, if he opposes the Bill, as being week on crime and the average voter is more persuaded by the simple message than the complex constitutional point you rightly raise.
No doubt Blair will recall the grave problem caused to old labour by the anti-IRA Prevention of Terrorism Act which old Labour voted against dutifully every year. That annual ritual only being dropped by Straw in 1996.
Howard should tread very carefully on this one and maybe follow his old instincts than any new ones
I believe there’s considerable controversy over whether ministers’ powers to overrule judges’ sentences in the case of those sent to prison ‘for life’ would survive a challenge in the European Court of Human Rights. Am I imagining it, or did a former home secretary have to give up his power to set his own tariff in *mandatory* life sentence cases (e.g. for murder), often ignoring or greatly expanding the tariffs set by the trial judge and the Lord Chief Justice, transferring that power to the Lord Chief Justice, in order to comply with an ECHR ruling? It’s plainly quite wrong that a politician, influenced by the electoral and other political consequences of his decisions, and how they will play with our uniquely vicious and vindictive tabloids, should have such a power in individual cases which obviously ought to belong to the judiciary.
For my money the Joint Committee has got it absolutely right, and Charles Clarke absolutely wrong. There’s a good leading article on this in today’s Observer — the software won’t accept my attempt at a hyperlink, but it’s at —
http://observer.guardian.co.uk/>
leaders/story/0,6903,1426398,00.html
(if that will fit into 2 Comment lines!)
Brian
https://barder.com/brian/
Just to remind ourselves….
“They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” – Benjamin Franklin
Cheers
Matt
This post has been removed by a blog administrator.
Brian,
I’ve been wondering, is it going too far to compare the current act with elements of the Hindenburg decree of February 28, 1933?
Specifically the suspension of Article 114 of the Constitution of the German Reich:
“Article 114. The freedom of the person is inviolable. Curtailment or deprivation of personal freedom by a public authority is only permissible on a legal basis.
Persons who have been deprived of their freedom must be informed at the latest on the following day by whose authority and for what reasons the deprivation of freedom was ordered; opportunity shall be afforded them without delay of submitting objections to their deprivation of freedom.”
As refered to in Robert Jackson’s opening address to the Nuremberg trial.Cheers
Matt
Matt,
That’s a very telling quotation. Thanks.
Perhaps this raises a question-mark over whether our basic rights are adequately protected as long as we continue to respect “the sovereignty of parliament” under which there is no independent outside arbiter of the legitimacy of any law duly passed by parliament, which (taking into account the Parliament Act provision enabling the House of Commons to overrule the House of Lords in certain circumstances) really means the sovereignty of the government, the executive having got effective control over the House of Commons. Even the law lords can’t strike down a law once it’s been passed: all they can do is declare it incompatible with UK obligations under the Human Rights Convention. It’s impossible for any Act to be specially entrenched because any provisions purporting to entrench it can themselves simply be repealed. Our sole protection comes from public and media vigilance and the ability to impose a political and electoral penalty on an overweening government: and this is a pretty flimsy safeguard against gross abuse, as we’re currently seeing with the monstrous, neo-fascist Bill now being railroaded through parliament by the prime minister and the home secretary.
We probably ultimately need an entrenched written constitution in a single document, incorporating the Human Rights Act or something like it, and establishing a Supreme Court with the power to declare unconstitutional and null and void any law that contravenes it. The constitution would need to lay down rules for appointments to the Supreme Court that would protect them from political influence (e.g. of the kind that corrupts the US Supreme Court), although that would not be at all easy to devise now that we can’t trust governments to respect the unwritten or unenforceable convention on which we have relied hitherto.
These are choppy waters!
Brian
A nice thought Sir, but a written Constitution does not protect the right of the individual from the overpowering Executive or dictatorship.
All European countries recently subjugated under dictatorships had written Constitutions. Ask the Germans the Spanish and the Portugese how their written Constitution protected them from oppression.
The Government got itself into this pickle by its headlong and I would say ill-considered rush to incorporate European Convention rights into British Law.
The Europeans have written Constitutions and could understand these vague and ill-defined rights. They largely have politically appointed interventionist judges who are used to interpreting these rights. We do not have such judges.
Well drafted and clear legislation made in Parliament will always supercede European law but in the last few years lack of scrutiny and a largely ineffective opposition has made such legislation as rare as hen’s teeth.
Don’t think for one moment that I an some crank opposed to giving people rights to live their lives with as little interference from the State as is appropriate for the public good – far from it. But I would sooner enjoy the one right of Habeas Corpus than any number of the Convention rights
Anon,
I really don’t see why you blame the government’s rush, headlong or otherwise, to incoprporate Convention rights into UK domestic law, as the cause of it’s present trouble. After all,prior to the HRA, the Belmarsh detainees had a perfectly good case under the Convention to present to Strasbourg. And there the result, though delayed, would have been the same.
t
You may be interested in this
Cheers
Matt
Matt,
Merci
t
Matt’s suggestion referred to a long website address which I have reduced to http://tinyurl.com/5gytw (thanks to the excellent URL-reduction programme at http://tinyurl.com/). Well worth a visit. (Getting hyperlinks to stick in these comments is a rather hit-and-miss affair, I find.You may have to copy-and-paste
http://tinyurl.com/5gytw.)
But the article at which Matt helpfull points us, while full of good things, seems to me to fall into the trap of accepting that if these poisonous control orders are actually issued by a judge, not just reviewed by a judge,they won’t be poisonous any more. Au contraire. As Simon Jenkins points out in a characteristically excellent article in today’s Times, this will be a gross abuse of the judiciary, which is supposed to function in a proper court hearing admissible evidence and interpreting and administering the law, not as a kind of auxiliary policeman or junior minister carrying out tasks set for them by the home secretary. The control orders are themselves absolutely unacceptable, whoever issues them. Anyone suspected of being a terrorist should be arrested for questioning and held for up to 14 days while further investigations take place, as provided for in current law. The kind of restrictions envisaged in the control orders would be perfectly all right if imposed as conditions for bail for people charged with an offence and awaiting trial, but not for people who haven’t been and aren’t going to be charged.
It’s alarming that our politicians don’t seem to grasp these simple principles. The itch to ‘compromise’ (and thus to wind up agreeing to support the insupportable) is just too strong. I hope I’m wrong.
More at https://barder.com/Brian/
Brian
2 March 05
But “being a terrorist”, unless that terrorist belongs to a proscribed organisation, the IRA for example, is not an offence for which an arrest can be made.And for which conditions can be imposed on bail.
cheers
t
From Peter Harvey
<< All European countries recently subjugated under dictatorships had written Constitutions. Ask the Germans the Spanish and the Portugese how their written Constitution protected them from oppression. >>
It is clear that a Constitution cannot stand up to a determined attempt to overthrow it, especially a military attempt as happened in Spain. However, the people of these three countries, looking back at their recent history, would far rather live with the protection of a constitution than with the arbitrariness of totalitarianism and dictatorship.
Tony Hatfield wrote:
>>But “being a terrorist”, unless that terrorist belongs to a proscribed organisation, the IRA for example, is not an offence for which an arrest can be made.And for which conditions can be imposed on bail.<< But my understanding is that terrorist suspects to whom the proposed measures are intended to apply have to be members or supporters of al-Qa’eda or one of its affiliated organisations, all of which are indeed proscribed. That at any rate is the position under the discredited Part 4 of the ATCSA which Clarke’s Bill is intended to replace. If someone is suspected of planning violence of some sort but isn’t connected with al-Qa’eda or any other proscribed organisation, he or she should surely not come under these special powers anyway, but should be dealt with under the existing laws other than Part 4. A suspect can anyway be arrested and held for up to 14 days for questioning, and if in that time the police and security services can’t find admissible evidence against him, the implication surely is that they’ve got the wrong man and he should be released. But as I’ve said before, I’m not a lawyer! Brian