Fighting terror with injustice

IN the fight against terrorism, the gloves must come off. Against an enemy who does not play by the rules, the rules themselves must be changed. There is no room for niceties in this dirty war.

That was Tony Blair's view in August, just short of a month on from the July 7 London bombings, which claimed the lives of 52 innocent people. And that is the argument behind the Terrorism Bill, the Government's response to that atrocity.

But the spirit which prevailed in the aftermath of the bombings, of co-operation and uniting to face a common enemy, has dissolved. Now the Government is struggling to push through proposals which the Prime Minister sees as crucial in the war against terror, pitting it against lawyers, human rights groups and many of its own MPs.

The first contentious part of the Bill to be put to a vote, the clause on incitement to terrorism, was passed last week by a majority of one, the closest Tony Blair has come to a defeat in the Commons since he became Prime Minister.

And the most controversial proposal, to extend from 14 days to 90 the time a terrorist suspect can be held without charge, is being watered down after it became clear it would be defeated if it went unchanged into tomorrow's vote.

Despite the compromise, the Prime Minister used his monthly press conference yesterday to insist his determination to push through the 90-day proposal was "absolutely undiminished". His commitment to the move, and his belief it was central to the fight against terrorism, did not run as far as making it a question of confidence in his Government, however.

Nor was Mr Blair above suggesting that those who opposed him risked compromising national security, the sort of knee-jerk jingoism he would have scorned when he was in opposition.

Polls suggest opponents of the Government's plans are flying in the face of public opinion. According to an ICM/Guardian poll, almost three quarters of the public believe it is right to give up civil liberties to improve security against terrorist attacks, and a YouGov poll for Sky News found that 72 per cent supported extending the maximum detention time to 90 days.

But opponents of the Bill are unrepentant. Tory leader Michael Howard said 28 days detention was the maximum he could countenance, while the LibDems are unwilling to move from the existing 14 days. Civil rights group Liberty points out that most of those arrested under terrorism laws are released without charge, and most of those are Muslim.

"We appreciate many people will be in favour of extending time limits," says policy director Gareth Crossman before adding. "It is unlikely that anybody who supports these measures would be directly affected by them.

"However, the impact upon those who have family, friends and neighbours arrested and then released weeks, or even months, later with no charge and no explanation will be huge."

The Foreign Office produced a document last month comparing anti-terrorist legislation in Britain with that in other countries, claiming it showed that suspects could be held for longer than three months in both France and Germany. But this is to ignore the differences in the legal system, says Dr Rhiannon Talbot, law lecturer and terrorism expert at Newcastle University.

In both countries, the longer periods only apply after a suspect has been charged, and in its 14 days Britain already has the longest detention without trial in the world, she says. Instead of turning two weeks into three months, there are other measures which could address the police concerns.

Among the police arguments for 90 days is that suspects find it too easy to get bail, and can then avoid a trial. This could be remedied by making it harder to get bail, Dr Talbot says.

The provision that suspects can no longer be interviewed once they have been charged can be dealt with by allowing police to carry on interviewing them. And the claim that further investigations could reveal evidence of greater wrong-doing than was originally suspected, could be resolved by allowing the police to substitute the original charges for stronger ones.

"There are alternatives, but they seem unwilling to consider them," says Dr Talbot. "All of them do have their implications for civil liberties, but they are far less draconian than locking people up for 90 days without charging them.

"They are proposing to detain people when they haven't got enough evidence to justify charging them. It seems to me to be putting the cart before the horse.

"And there are alternatives they could use if they're really convinced these people could abscond. They have already got house arrest and tagging."

She says if the police do not have even the low level of evidence needed to charge somebody, they are going to be holding people with very little evidence at all. But it is easy to see why the police are so keen on this measure. "It is less work for them," she adds. "If people are locked up in a prison cell, the police don't have to monitor them and they have 24 hour access."

Another police argument in favour of 90 days is that much of the evidence may be on computers and they may need time to break the encryption. But the Government does not seem to have considered making withholding an encryption code an offence, and, in any case, if the code is that secure they're not going to break it in three months.

"The reason they don't want to charge them is they haven't got enough evidence, but they're talking about detaining people for three months when they haven't got enough evidence to charge them, let alone prosecute them," says Dr Talbot.

"The police, by their very nature, are going to want to have as many powers as possible in order to make their jobs as easy as possible, but the whole point of having democratic politicians is to be able to negotiate between the arguments.

"Just because the police want it, doesn't mean they have to have it."

And it is not just the 90 day limit which tramples on civil liberties. Proposed offences of incitement to terror - the measure passed by a single vote - and those related to training and preparing terrorists, have disturbing implications. Bonfire Night would fall under the legislation, as well as a whole host of legitimate and ordinary activities.

A flying instructor whose pupil piloted a plane into a building could be accused of training a terrorist. A chemistry teacher who taught his students the dangers of explosive substances could also be caught within the Government's net.

For these activities, the test of whether it is an offence does not lie in any intention to commit terrorist crimes. Indeed, intention is irrelevant. What is important is a retrospective judgement of what effect those actions had, a new departure for UK law. Sentences go up to life in prison.

The Government has said it will use its discretion in deciding who should be prosecuted, so those who innocently got caught up in terrorism would be safe, but this is of little comfort.

"One of the central tenets of the law is people ought to be able to find out what they're not allowed to do, so they can avoid doing it," says Dr Talbot. "But here it would be up to the state to decide whether or not to prosecute.

"It is allowing the Government to decide what is criminal on a case by case basis. People are going to be doing all these ordinary things and then the Government could say that maybe that was criminal after all."

She says that although much of the Bill is unworkable, it is possible to see what the Government is trying to achieve. But much of this is best accomplished through other means than changing the la w.

The Prime Minister's pledge in August to change the rules of the game had preachers who advocated terrorism as one of his principal targets. But laws against inciting terrorism already exist, and the answer is not to introduce new ones.

"They should be doing it through politics, looking at why people are being inflamed to say these things and why people are believing them," says Dr Talbot. "What is going on that people feel the way to respond is through violence?

"The criminal law isn't going to solve this at all. You will just get further alienation. This Bill is very foolish and I think it is going to be unworkable. And lessons from history aren't being learned. Northern Ireland isn't that long ago, and none of the powers available then were as wide or draconian as these, and look at the alienation they caused."