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Guilty! New Labour could arrest self under new terror law

But are we not all, in a sense, guilty? Yes, it says here...

To enforce all this we have requirements to submit to searches of residence or other premises, and to "co-operate with specified arrangements for enabling his movements, communications or other activities to be monitored by electronic or other means." These include "wearing or otherwise using apparatus approved by or in accordance with the arrangements". The Belmarsh detainees will therefore walk free, but where and how they walk, and what they do, will be defined by Charles Clarke and enforced by a regime of surveillance and tagging.

Considering all of these possibilities, you might feel the 'no home detention' concession is somewhat academic - and you'd be right, because it isn't exactly what Clarke has conceded, and the concession he has made is actually to human rights law rather than to critics. This will become a particularly important area as the use of electronically enforced non-custodial and extra-judicial restrictions develops, so it bears examination.

The Prevention of Terrorism Bill actually says that the Home Secretary "may make a control order imposing an obligation that is incompatible with the controlled person's right to liberty under Article 5 of the Human Rights Convention", but there are conditions that need to be fulfilled. First there must be a "particular public emergency", and there must be a designated derogation for that emergency from Article 5.

Translated, that means that the UK Parliament must have voted under the terms of the Human Rights Act 1998 to derogate, or opt out, from Article 5. The Act allows for this, but only in cases of national emergency. The European Convention on Human Rights also allows for this, but the necessary national emergency is defined as one that "affects the whole population and constitutes a threat to the organised life of the community of which the state is composed."

So Clarke has two problems here, squaring the emergency level with the 1998 Act and the ECHR, and deciding what constitutes restrictions that are incompatible with the victim's right to liberty under Article 5. Locking them up, we are all now apparently agreed, would count, but what else? Clarke himself conceded yesterday that if sufficient restrictions were imposed on an individual they could in sum be viewed as interfering with his right to liberty, but there's no points-weighting system in the Bill, no item is helpfully flagged 'definitely breaches Article 5', so it will require legal challenges to establish where the Act and its application breaches the ECHR.

As tagging and restrictions become more commonplace, there undoubtedly will be such challenges. The Home Office is perhaps not wonderfully placed to resist these. Clarke it would appear currently thinks we do not have a qualifying emergency, while the Home Office's terror FAQ answers the question, "Does a public state of emergency exist?" with an emphatic "Yes." Wrong kind of emergency, then...


In support of the Prevention of Terrorism Bill the Home Office published four briefing documents. These are heavily dependent on evidence they claim to have but won't show us, but there are a couple of statements of fact that can be readily challenged from published information.

For example: "The UK has extensive experience of tracking, disrupting and undermining the finances of terrorist networks." Which we presume is why the Provisional IRA's long-standing money-laundering and racketeering activities are in such manifest bad shape.

Or, in the FAQ, we are told: "Our 'intelligence' only approach, based on decades of dealing with terrorism, brings with it uniquely close co-operation between law enforcement and intelligence agencies." In Northern Ireland, this uniquely close co-operation is widely suspected to have included stealing one another's files and burning down one another's offices (more information at Statewatch).

Document 4 throws us all a lifeline, right at the end. The UK's war on terror, it tells us, relies heavily "on the public's willingness to get on with everyday life in the absence of specific threats." So if we understand that it means we're all holding this ridiculous edifice together by carrying on as if there's nothing happening when, er, there's nothing happening. Well, it's pretty cold right now, so tomorrow seems an excellent opportunity for us all just to stay in bed, and see if the Government falls. ®

Related links

Comms, internet ban orders surface in new UK terror law
The Bill (short, as they go, readable)
Home Office briefing papers

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