The Rules of the Game Terrorism, Community and Human Rights Andrew Blick, Tufyal Choudhury and Stuart Weir

A REPORT BY DEMOCRATIC AUDIT, HUMAN RIGHTS CENTRE, UNIVERSITY OF ESSEX

For the Joseph Rowntree Reform Trust

The Rules of the Game Terrorism, Community and Human Rights £12.50

First published in Great Britain by The Joseph Rowntree Reform Trust, Garden House, Water End, York YO30 6WQ Telephone: 0044 (0)1904 625744 Email: [email protected] Website: www.jrrt.org.uk

© Andrew Blick, Tufyal Choudhury and Stuart Weir

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Democratic Audit is a research organisation that carries out research into the quality of democracy and human rights in the UK and publishes secular and systematic ‘audits’ of British democracy. The Audit is attached to the Human Rights Centre, at the University of Essex, and maintains the same standards of objective and policy-relevant scholarship in the Centre’s tradition of the ‘public intellectual’. The Rules of the Game Terrorism, Community and Human Rights Andrew Blick, Tufyal Choudhury and Stuart Weir

A Report by Democratic Audit, Human Rights Centre, University Of Essex for the Joseph Rowntree Reform Trust About the Authors

DR ANDREW BLICK is research officer with Democratic Audit. He was previously political researcher to Graham Allen MP. He is author of People Who Live in the Dark: The History of the Special Adviser in British Politics and How to Go to War: A Manual for Democratic Leaders (he was described by the Guardian as a ‘mild-mannered Machiavelli for the 21st century’); a contributor to Unequal Britain: human rights as a route to social justice; and a key researcher on Not in Our Name: Democracy and Foreign Policy in the UK.

TUFYAL CHOUDHURY is a lecturer in international human rights law at Durham University. His research interests focus on equality law and in particular on racial and religious discrimination. He is a director of the Discrimination Law Association, adviser to the discrimination law project for JUSTICE, the human rights organisation, and consultant on a variety of associated projects. He is author of the Open Society Institute report, Muslims in the UK: Policies for Engaged Citizens, and was a joint author of Democracy under Blair: A Democratic Audit of the United Kingdom.

PROFESSOR STUART WEIR is director of Democratic Audit, at the Human Rights Centre, University of Essex, and is a senior research fellow at the Centre. He is joint author and editor of various democratic audits of the United Kingdom and other Democratic Audit publications. He was an active consultant to the intergovernmental body, International IDEA (the International Institute for Democracy and Electoral Assistance) from 1998 to 2004, and was a joint author of The International IDEA Handbook on Democracy Assessment (which he is currently engaged on revising with colleagues). He acts as a consultant on parliamentary democracy and human rights, mostly in Africa, is a former editor of the New Statesman, and founded Charter88, the domestic campaign for democratic renewal.

6 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT Contents

About the authors 6

Acknowledgements 8

Foreword Lord Smith of Clifton 9

Executive Summary 11

Chapter 1 The Terrorist Threat 13

Chapter 2 The Muslim Communities 18

Chapter 3 The Experience of Young Muslims 27

Chapter 4 The Government’s Counter Terrorism Strategy 31

Chapter 5 The Effect on Human Rights 42

Chapter 6 Safeguards and Oversight 56

Chapter 7 Looking to the Future 65 Conclusions 65 Recommendations 67

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 7 Acknowledgements

e have been very fortunate on the government’s Community Democratic Audit advisory panel who in having been able to draw Cohesion and Race Equality strategy; attended the earlier seminar: Professor Wupon a wide and diverse John Denham MP, chair, House of David Beetham, associate director of range of knowledge, expertise and Commons Home Affairs Committee; the Audit; Iain Byrne, Commonwealth ideas, in interviews and at two Khurshid Drabu, Muslim Council of Law Officer at Interights; Professor seminars and through comments Britain; Shareefa Fulat, Muslim Youth Paul Hunt, chair, Democratic Audit; on early drafts of Chapters. We owe Helpline; Tariq Ghaffur, Metropolitan Professor Lydia Morris of the Sociology particular debts of gratitude to Sir Police Assistant Commissioner; Department, University of Essex; Meg David Omand, former UK Security Murray Hunt; Sadiq Khan MP; Robert Russell, of the Constitution Unit, UCL; and Intelligence Coordinator and Lambert, Metropolitan Police Muslim Lord Smith of Clifton; and Professor Permanent Secretary, Cabinet Office; Contact Unit; Phillip Knightley, Jane Wright, then director of the Murray Hunt, legal adviser to the author and journalist; Ian Macdonald Human Rights Centre, University of parliamentary Joint Committee on QC; Arzu Merali; Sir David Omand; Essex. Human Rights; and Shamit Saggar, Professor Shamit Saggar; Massoud Our thanks go also to the trustees Professor of Political Science, Shadjareh, chair, Islamic Human of the Joseph Rowntree Reform Trust, University of Sussex, who gave us Rights Commission; Adnan Siddique, who entrusted us with this project, and interviews, commented on drafts and Caged Prisoners, Murad Qureshi, especially to Lord Smith and Diana acted as respondents at a seminar London Assembly member; Charles Scott, who met regularly with us to on the final draft of this report. Sir Shoebridge, security consultant; and guide our efforts; to Mark Ross and David and Arzu Merali, of the Islamic Abdal Ullah, Metropolitan Police his colleagues in the JRRT office in Human Rights Commission, another Authority. York, Tina Walker and Gael Bayliss; respondent at the final seminar, also Further thanks are due to all to Claire Preston, who carried out contributed to an earlier seminar those who sacrificed the afternoon valuable research on young people for the Democratic Audit’s advisory of 25 October 2006 to comment on in the Muslim communities for us; board along with Francesca Klug, the final draft of this report under to Kaushiki Ghose, moderator of our Professorial Research Fellow at the the chairmanship of Lord Smith focus groups and to ICM Research LSE Centre for the Study of Human of Clifton, a board member of the who organised them; and as ever to Rights and director of the LSE Human Joseph Rowntree Reform Trust: Tony Garrett, designer of this report. Rights Futures project, and Colm the aforementioned respondents, O’Cinneide, of the Faculty of Laws, Sir David Omand, Murray Hunt, UCL, who also commented on a draft Arzu Merali and Shamit Saggar, Chapter. with Lord Lloyd of Berwick, former We received valuable advice from Law Lord; Anthony Barnett, editor- Professor Peter Hennessy FBA, Attlee in-chief, OpenDemocracy; Robert Professor of Contemporary British Beckley, Assistant Chief Constable History, Queen Mary, University (Crime), Hertfordshire; Tony Bunyan, of London; and Dr Todd Landman, editor, Statewatch; Louise Christian, of the Department of Government, Christian Khan solicitors; Nick University of Essex, kindly shared Clegg MP, Liberal Democrat Shadow with us a comparative paper on Home Secretary; John Denham MP; counter terrorism legislation across the Dominic Grieve MP, Conservative democratic world. Shadow Attorney General; Christina We should like also to thank all Dykes, policy adviser to Dominic those who generously gave us their Grieve MP; Hiranthi Jayaweera, time to be interviewed: Azad Ali, of researcher, Migration Management, Muslim Safety Forum; Fahad Ansari, Compas, University of Oxford; Polly Islamic Human Rights Commission; Mackenzie, adviser to Nick Clegg MP; Mohammad Abdul Aziz, Commission Alveena Malik, Commission for Racial for Racial Equality; Robert Beckley, Equality; Peter Oborne, Channel 4 Association of Chief Police Officers; journalist; Henry Porter, journalist; and Lord Butler of Brockwell, former Claire Preston, voluntary researcher Cabinet Secretary and head of the on this report. Diana Scott, chair of the Home Civil Service; Lord Carlile of Joseph Rowntree Reform Trust, Mark Berriew QC, Independent Reviewer of Ross, project adviser to the JRRT and terrorism legislation; Philip Colligan, the three authors also participated in formerly Private Secretary to John the seminar. Gieve, Permanent Secretary at the We gained valuable insights Home Office, who worked there from the following members of the

8 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT Foreword

he role of the state in relation context within which contemporary advantages but with potential counter- to the citizen is a perennial debate on the changing boundaries productive disadvantages. Tquestion that has to be attended between the state and the citizen, For all these reasons the Joseph to at regular intervals in the light between order and liberty, must be Rowntree Reform Trust decided of changing circumstances. It is resolved. to commission Democrat Audit to clear that the opening years of the There is one further factor to be undertake an analysis of the ‘perennial twenty-first century, which have considered and that is the Muslim problem’ as it presents itself today. been characterised by new forms communities, most notably in Britain In particular, it was asked to review of terrorism with both national and but also elsewhere. The new outbreak the new counter-terror measures international dimensions, have of terrorism has been caused by that have been adopted, to note the occasioned a renewal of the debate on Islamic jihadists both from abroad successes and failures and to estimate the subject. and, more recently, home grown. how far, if at all, they were counter- There is no denying that the over- This has had profound implications productive. Special attention was to be riding duty of the state is to protect for the maintenance of a peaceful given to the situation of the Muslim its citizens, but to do so in such a multicultural Britain. In pursuit of the community. The Rules of the Game way as not to encroach unduly upon terrorists new laws and tactics have reports the findings of Professor Stuart their basic rights and liberties. This been devised and employed whose Weir and his colleagues. It affords an is a tension that has to be managed efficacy is a matter of genuine debate. up-to-date, objective and authoritative if proportionality and balance are to One effect of the new measures, account of recent developments be contrived and rendered publicly however, has been to increase the that will be widely accepted; it also acceptable. In a liberal democracy the anxiety and alienation of British contains policy recommendations process of achieving such a desired Muslims to the point where the entire for the future which will more outcome is necessarily one of informed Muslim community risks becoming contentious. However, both elements and free political debate. demonised and that cannot be good for of the report make an important That is the classic textbook the health of civic society. contribution to the ongoing debate on formulation of what should happen. In In 1904, when Joseph Rowntree the themes of terrorism, community practice, it is much harder to achieve established the trusts that bear his and human rights which now define this ideal because the very situations name, he wrote to the board members the parameters of the ‘perennial that trigger a re-examination of the of all three, observing that ‘while problem’. ‘perennial question’ are invariably new occasions teach new duties’ it Lord Smith of Clifton ones of crisis when the state is under is possible that ‘time makes ancient external and/or internal threat. truths uncouth’. How applicable is Such circumstances require swift this dictum to our present concerns? action by governments so that any That is to say, is the character of the critical analysis and monitoring of so-called ‘War on Terror’ such that these responses by Parliament, the it requires an acceptance that ‘the judiciary, the media and ultimately rules of the game’ have to be changed the electorate is consequential substantially, as political leaders and often occurs much later. The of a neo-conservative cast of mind evaluation of government reaction is insist? Or is it rather the case that more problematic when the crisis is the new kind of terrorism that has prolonged and occasions yet further manifested itself since 9/11 is not so measures, before the earlier ones have different from previous episodes that been digested, and when raison d’etat it cannot be accommodated within is employed to constrain debate by existing legal provisions? This is the withholding essential facts from the view of many distinguished jurists. public arena. No one would disagree that the A good deal has to be taken intelligence and security services on trust that government has the and law enforcement agencies requisite intelligence to support its need seriously to improve their actions and, moreover, that these performance for they quite patently are proportional to the perceived do. The fundamental point at issue crisis. Public trust in government is whether new laws and oversight and political elites these days is at a procedures are necessary for dealing discount pretty well throughout the with the changed nature of terrorism western liberal democracies and this or whether such contrivances are is an added complication. These are merely politically cosmetic knee- the ingredients that go to make up the jerk responses with no substantive

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 9 10 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT Executive summary

ome-grown terrorism presents from individuals in those communities numbers of people who have some a real, if unquantifiable, that they require to combat terrorism. sympathy with their aims, and who Hdanger to the people of the The impact of the legislation and share to some extent the frustrations United Kingdom. There is evidence its implementation has been self- and anger that drives the men of that terrorist cells are becoming defeating as well as harmful. Its violence and who could give them more proficient and further terrorist boomerang effect is being made more the tacit or active support on which attacks are likely to occur, putting at damaging by government statements, terrorists everywhere rely. Government risk people in all communities. It is in particular those of the Home policy must persuade these young the first duty of the government, the Secretary, John Reid. people that their future lies within the intelligence and security services We acknowledge how difficult it democratic framework of a tolerant and the police to protect the public is for the state and intelligence and and law-abiding nation. These and to adopt counter terrorism laws security forces to seek out potential short-term and long-term goals are and practices that minimise the risks terrorists who may be or who are connected. The more the authorities from terrorism to the public and make active within particular communities can win minds and hearts within the it possible to apprehend the ‘men of without to some extent targeting or Muslim communities, the more likely violence’ before they are able to act. even demonising by extension the they are to gain the vital intelligence But they recognise, as we do, that it is communities within which they hide. that can save lives. Good and not possible to guarantee that all plots But ministers have failed to make the accurate intelligence is the single most against the public will be prevented. vital distinction between criminals important key to success. Both counter terrorism laws and and communities strongly enough, We strongly urge the government practice inevitably raise concerns as the police service actually did to abandon talk of a ‘War on Terror’. about the impact that they have on after 7/7. We also recognise that This terminology is misleading and human rights and on the quality of the government has to reassure the disproportionate and leaves the Prime justice and democracy in this country. public that it is acting firmly to protect Minister open to the charge that he is The Joseph Rowntree Reform Trust them. But the combination of tough exploiting a politics of fear. It allows asked us to review the human rights laws and tough talk ministers have terrorists to assume the dignity of consequences of the government’s adopted is divisive and directed too being ‘soldiers’ or ‘combatants’ instead counter terrorism legislation and much at the majority population. of the mere criminals that they are. In the work of the intelligence and There is a strong suspicion that some responding to the terrorist threat, it is security services and police; and to pronouncements are inspired by essential to keep a sense of proportion judge whether it was effective. In electoral considerations. for other dangers for a democracy like November 2005, we produced The Ministers (and some opposition Britain lurk in the shadow of terrorism. Rules of the Game, a scoping report spokespersons) publicly demand too But the rhetoric of war has encouraged focusing on the human rights aspects much from Muslim community leaders an over-reaction in which human of existing counter terrorism laws and who are not representative enough to rights and the rule of law are among the Terrorism Bill 2005 that was then deliver in any case. The emphasis on the more obvious casualties. going through Parliament. This report ‘separateness’, and in some quarters Government ministers often talk takes a wider look at the human rights ‘apartheid’, inspired in part by Jack of a ‘trade off’ between security and and community consequences of the Straw’s comments on the veil, is as human rights. But this is a false laws and counter terrorism practice. damaging as it is misleading, since choice. Human security itself is the Our basic conclusion is that all the evidence available (which we principal human right, ‘the right to the key to successfully combating examine in Chapter 2) suggests that life’, and is the central component terrorism lies in winning the trust the majority of Britain’s Muslims of the carefully assembled and and cooperation of the Muslim – by no means an homogenous group interdependent package of civil and communities in the UK. However, – wish to integrate and do not want political rights and responsibilities the government’s counter terrorism to live parallel lives in self-chosen contained in the European Convention legislation and rhetorical stance are ghettos. of Human Rights. The European between them creating serious losses In 2003, the government adopted Convention, now largely incorporated in human rights and criminal justice a counter terrorism strategy that was into British law, allows for a protections; loosening the fabric of designed to pursue potential terrorists government to restrict some rights justice and civil liberties in the UK; robustly in the short term while in a genuine national emergency. and harming community relations and seeking in the longer term to prevent There is a case for a limited ‘trade off’ multiculturalism. Moreover, they are the radicalisation of Muslims in the between surveillance and other civil having a disproportionate effect on new generations now growing up in and political rights since, at least for the Muslim communities in the UK the very young Muslim communities the time being, surveillance is most and so are prejudicing the ability of in the UK. There are comparatively likely to deliver the intelligence that the government and security forces few terrorists in the midst of these is required to prevent terrorism. But to gain the very trust and cooperation communities. But there are larger this would require stronger safeguards

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 11 against abuse than those which to prosecute alleged terrorists rather currently exist, especially in view of than resorting to preventive detention. warnings that Britain is sleep-walking Ministers should also involve into ‘a surveillance society’. We also Parliament more fully in reorienting its accept the ‘trade offs’ involved in the counter terrorism laws and practice. intelligence community and police They can make a valuable start by service practice of early intervention allowing for thorough pre-legislative to disrupt and prevent terrorist plots so scrutiny of the promised Consolidation long as it does not rely on prolonged Bill on terrorism, accompanied by a preventive detention. wide-ranging public debate. The major ‘trade off’ that is We are also convinced that the occurring is not however between this government should review its foreign or that right. It is between the rights policy in the light of British interests at of the majority population and those home and abroad. We say so not out of minorities, especially the Muslim of a knee-jerk anti-Americanism but communities. In a very real sense, from a profound conviction that the and no doubt inevitably, apprehension Prime Minister’s close and publicly of the terrorist threat has been unquestioning stance alongside the ‘racialised’. An important part of the United States is damaging to British government’s ability to pass its counter influence in the world at large and in terrorism laws and developing police Europe; that it feeds extremism and practice lies in the idea that these violence at home and abroad; and that laws and their enforcement will not be it casts severe doubt on this country’s employed against Tony Blair’s ‘law- commitment to democracy and human abiding’ majority: they will not be used rights which must be the cornerstone against ‘us’, they will be used against of our struggle against extremism. ‘them’. The way that the threat has Finally, we are also concerned been ‘racialised’ is key in drawing that the Muslim communities, for a this boundary. Stringent measures variety of reasons, are not beginning are possible in part because the to prosper as new generations succeed general public does not feel vulnerable the first settlers. There seems to be to being kept under surveillance, no ‘second generation bounce’ as watching their words, being arbitrarily there has been in other immigrant stopped, searched, raided, beaten, communities. We recommend that the arrested or shot. By contrast, people government continue in its efforts to in the Muslim and other minority end the discriminations that blight communities do. the lives of the younger members of We make a series of these communities and to alleviate the recommendations in Chapter 7, the deprivations and disadvantages from most important of which are that the which they suffer. government should adopt a more open and inclusive counter terrorism strategy in place of its combative insistence that it alone knows the right course; that it should recognise that the participation of local communities, Muslim and non-Muslim, is vital; that the request of the government’s own Muslim working groups for a wide-ranging inquiry on the roots of terrorism should take place; and that the government’s strategy should be constructed and implemented within the framework of the rule of law and human rights, a recommendation with which the intelligence community agrees. Within this framework, the government should retreat from the shadow system of executive justice that it has been constructing and deal with terrorism so far as is possible within the criminal justice system and its safeguards. The new offence of preparing for terrorist activities has made it easier to bring criminal charges against alleged terrorists; ending the ban on intercept information as admissible evidence in courts would also make it easier

12 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT Chapter 1 The Terrorist Threat

he United Kingdom faces in media briefings, or sound-bites in This terminology of ‘war’ is a a serious threat of terrorist ministerial speeches, they clearly have counter productive blunder. It allows Tattacks from ‘home-grown’ and to be taken seriously and effective terrorists to regard and proclaim international sources, but the scale of counter measures must be taken. But themselves as ‘combatants’ and the threat and its likely duration are it is vital at the same time to keep a ‘soldiers’, whereas they should be unknowable to the general public. sense of proportion. For other dangers described and prosecuted as criminals. The security forces, however, take for a democratic society like Britain Moreover, it leaves Tony Blair and it for granted that the 7 July 2005 lurk in the shadow of terrorism, George Bush, the main protagonists bombings in London will not be especially if it is a long-term threat. of the ‘War on Terror’, open to the the last terrorist attack in the UK. The government must strike the charge that they are exploiting a new They also take it for granted that the right balance between public safety politics of fear that actually assists threat of terrorism against the UK and fundamental democratic values. the terrorists. The attitudes the idea and UK interests and citizens abroad Aggressive counter terrorism laws betrays encourage the authorities to will last for at least one generation, and practice can endanger the rule overlook the need for a proportionate and possibly longer. Peter Clarke, of law and human rights that are response to the menace and to adopt Deputy Assistant Commissioner at the the hallmarks of a democratic and measures that are justifiable only in a Metropolitan Police, said in response open society; especially the rights real war or for a short-lived emergency. to our questioning at a Royal United of Britain’s Muslim communities David Blunkett, when Home Services Institute (RUSI) conference among whom the authorities search Secretary, actually referred to on terrorism that the nation was facing for terrorists. There are signs that historical examples of special ‘unprecedented’ levels of threat from the response to terrorism of the measures taken in the midst of armed ‘well-trained’ home-grown terrorists, government and media is already conflict to justify the counter terrorism adding that ‘Al-Qaeda are believed to opening up damaging fissures in powers that the government was have talked of plans over the next 50 society between the majority and these then seeking. In his foreword to a years’.1 minorities; and all the more intensively Home Office consultation paper in Senior security officials give since former Home Secretary Jack February 2004, Blunkett wrote of how briefings to MPs and other opinion Straw initiated the debate over the ‘the American Civil War of the mid formers who describe them as veil in October 2006. And if the 19th century saw Abraham Lincoln ‘chilling’. One official stated to us that government over-reacts, counter suspending the right of habeas corpus terrorism in the UK could degenerate terrorism measures themselves may …while in World War II UK without into ‘a form of world war’ if it were feed and sustain terrorism, creating a trial citizens were interned on British not dealt with efficiently. The bombs well of sympathy and silence among soil’.5 (Wisely, he did not mention and other devices that have been certain groups in society, especially if measures in Northern Ireland, a more employed in attacks so far have been they increase repression, stigmatise exact parallel, which proved to be a rudimentary, he said, but he warned and alienate these groups and resort huge blunder that swelled community that the security forces already take to coercion and even torture, as the support for the Provisional IRA.6) seriously the danger of chemical UK learned to its cost in Northern The new Home Secretary, John attacks and fear that future terrorists Ireland.3 Reid, has however gone one further. may acquire nuclear materials. In These dangers are the greater in He has likened the war against terror October 2006, intelligence officials the current crisis for the government to Britain’s war against Nazi Germany briefed the media, warning that regards itself as being engaged in a and has proclaimed, with sub- ‘Britain has become the main target ‘War on Terror’, at home and abroad. Churchillian embellishment, that the for a resurgent al-Qaeda and now As Bruce Ackerman, the distinguished threat is worse than the cold war7. presents a greater threat than ever American constitutional lawyer who The measures now being taken before’. They no longer believe that is Sterling Professor of Law at Yale and their impact are not geared to the the terrorist threat in the UK comes University, has pointed out, ‘This is immediate crisis. They are intended from small uncoordinated groups, not a War . . . This is an Emergency’. for the long-term. In her speech at but describe ‘self-organising groups’ Ackerman argues: the RUSI conference on terrorism on within an organised structure of 16 February 2006, Hazel Blears, then command and interlinkage, with ‘War on terror’ is, on its face, a the Home Office minister, said that sophisticated methods of recruitment preposterous expression. Terrorism Britain had to become accustomed and training and plans for a is simply the name of a technique: to ‘permanent anti-terrorist laws’, spectacular atrocity on the scale of the intentional attacks on innocent adding, 2001 attacks in the United States.2 civilians. But war isn’t merely a Notwithstanding that such technical matter: it is a life-and- Probably we all would have had a warnings are not issued in a full death struggle against a particular genuine hope that terrorism would and formal report to Parliament or enemy. We made war against Nazi be a temporary phenomenon the nation, but tend to be released Germany, not against the Blitzkrieg.4 and therefore our laws could be

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 13 temporary. I think probably we are activity, as the authorities do not John Reid, on BBC-2 Newsnight, said in a different position now. publish official estimates and release that he would not ‘confirm an exact information in an unsystematic and number’ when asked about a report Yet it is crucial in Britain’s counter ad-hoc way, often through the media that twice as many investigations were terrorism efforts to adopt measures or in speeches. The ISC report did underway.12 that are proportionate to the risks not estimate the size of the ‘large Part of the difficulty in establishing that our nation must confront, to number of extremists in the UK’ the scale of the danger lies in the uphold democratic principles and to while acknowledging that the state tactics of the police and security maintain moral and ethical standards; of knowledge of the intelligence and forces; and the language that is otherwise, our society may lose its way security services about the scale of sometimes used by ministers and in for two generations or more. This ‘war’ extremism is ‘not substantial enough’.9 the press to describe their activities against usually invisible forces, often Press reports and official statements confuses the picture still further. The within our own society, cannot be won on and off the record present authorities have determined that the by the security forces and counter- conflicting estimates of the scale potential damage to life and property terrorism laws alone. Extremist of danger. At the time of the 9/11 justifies the police and security forces ideologies that promote hatred and atrocities in the United States, it was in acting early to ‘disrupt’ potential terrorism can ultimately only be said that MI5 ‘knew’ of about 250 terrorist plots; one of the reasons defeated on ideological grounds in ‘primary investigative targets’ inside for the new offence of ‘preparation free and open debate within a nation Britain. According to The Times, that of terrorist acts’ is to give them the that upholds the rule of law and values figure had risen to 800 by 7 July 2005, possibility of charging and prosecuting of democracy, equality and freedom. and yet Peter Clarke told the RUSI suspects at an early stage. The conference in February 2006 that the language of official reports takes ‘Home-grown’ terrorism police believed that there could be up care to use the word ‘disrupt’; in the This report is largely focused on the to 500 fanatic terrorists in the country. mouths of politicians conspiracies response to what is now known as The Times says that the figure is now are ‘uncovered’ or ‘foiled’. Take for ‘home-grown’ terrorism. As late as over 1,200 while the Scotsman reports example the arrests of 10 Iraqis in March 2005, the intelligence agency that ‘anti-terrorism police and MI5 dawn raids in London, Derby and heads and senior officials who form have identified as many as 900 people Wolverhampton on 8 October 2005; the Joint Intelligence Committee in Britain who they suspect could be this conspiracy was reported by the (JIC), the central body for assessing linked to potential terrorist plots’.10 On Sunday Times, under the heading, ‘Car UK intelligence information on the other hand, the security consultant bomb attacks foiled.’ The Observer security, defence and foreign affairs, Charles Shoebridge estimated that the reported on 11 June 2006 that all those judged that ‘suicide attacks’ were hard core of terrorists - by which he arrested had been released without unlikely in the UK and ‘would not meant those with both the will and the charge. The ad-hoc nature of such become the norm in Europe’. However, capability to carry out attacks in the reports and the elusive language in a JIC report in 2004 noted that the UK – may amount to as few as about which they are couched make it hard security services were targeting an 100 people.11 to estimate how accurate they are as unstated number of British citizens for Official statements and media indicators of the scale of the terrorist investigation and judged that over the briefings use attempted terrorist plots menace. next five years the UK would be under as another measure of the menace. A further degree of caution is threat from ‘home-grown’ as well as For example, Sir Ian Blair, the advisable. For example, Sir Ian Blair’s foreign terrorists. Metropolitan Police Commissioner, article in the Sun was designed to rally The Intelligence and Security stated four months after the July 2005 backing for 90-day detention without Committee (ISC), from whose review bombings in an article in the Sun that charge, while the Sunday Times the above information comes8, did the Met and the security service had report coincided with the then Home however express concern that prevented ‘other attacks in the last few Secretary Charles Clarke’s decision Across the whole of the counter- weeks . . . The sky is dark. Intelligence to press ahead with that proposal in 13 terrorism community the exists to suggest that other groups will Parliament. development of the home-grown attempt to attack Britain in the coming Simon Jenkins, the Sunday Times threat and the radicalisation of months.’ In a meeting with families of and Guardian columnist, argues British citizens were not fully victims in that outrage in May 2006, forcefully that the chief risk we run is understood or applied to strategic John Reid, newly Home Secretary, not of terrorists undermining western raised the stakes, saying that 20 ‘major thinking. democracy but of the west absurdly conspiracies’ had been uncovered. overstating that risk: and questioned the JIC judgement The government’s official report on the Editors who blazon every rumour on that suicide attacks were unlikely, London bombings, published in May their front pages, politicians who commenting 2006, stated, ‘At least three further hold weekly press conferences on potential attacks have been disrupted there were clearly already grounds ‘international threat levels’ and since last July’. Two months later, the for concern that some UK citizens policemen who boast their tally government’s strategy report said that might engage in suicide attacks, of menaces averted are the arms the police and security agencies had as the shoe-bombers and the salesmen of terror. Obsessed by ‘disrupted’ many attacks against the bombers in Tel Aviv had done. We the chimera of “absolute security”, UK, ‘including four since last July are concerned that this judgement they seem comfortable only with alone’. By August, when Pakistani could have had an impact on the a perpetual state of emergency. and British security forces and police alertness of the authorities to the Such people are terrorism’s moved pre-emptively to disrupt the kind of threat they were facing and accomplices.14 alleged plot to ‘destroy up to 10 their ability to respond transatlantic airliners’, newspapers The simple fact is that, at least for It is very hard to judge the scale of reported that a dozen ‘similar terrorist now, the intelligence and security home-grown involvement in terrorist plans’ were being investigated, while agencies almost certainly do not

14 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT know. Sir David Pepper, director of UK ‘have much more negative views suggested that some 4 per cent would the Government Communications of westerners’ across a range of poll not condemn the London attacks Headquarters (GCHQ) told the ISC, questions than Muslim minorities and a further 11 per cent refused to in France, Germany and Spain – a condemn such attacks. Respondents We had said before July [2005], there finding that suggests again that there were reported to be divided and are probably groups out there that is a ‘big job’ for government and equivocal over the key question for we do not know anything about, communities to take on.17 In three the intelligence and security forces of and because we do not know polls held in the immediate aftermath how they might deal with a potential anything about them we do not of the 7 July bombings – ICM 2005, suicide bomber among their ranks. know how many there are. What Sky Communicate Research and 72 per cent said that they would happened in July … rather sharpens YouGov – the great majority of British contact the police or security forces the perception of how big …the Muslims refused to justify the suicide at once, and another 6 per cent said unknown unknown was.15 attacks (91 per cent, for example, in they would first try to talk a would-be And whatever the exact nature the Sky Communicate Research poll). bomber out of his or her plans, but of the threat, no amount of security Between 2 to 6 per cent agreed that would contact the police if that failed. measures can guarantee absolute they were justified – a small minority But a fifth of these students would not security. In the words of the Newton that however suggests that there is inform the law enforcement agencies report on the Anti-Terrorism, Crime a pool of between 22,000 and 66,000 with such critical and potentially life- and Security Act 2001, ‘It is in the individuals, some of whom may be saving information. Two per cent of nature of terrorism that it is impossible prepared to give some form of support them ‘would never grass on a fellow to prevent it completely’. for such acts of terrorism.18 Similarly, a Muslim’; another 2 per cent would Meanwhile, it is surely incumbent Populus poll for The Times in February not call the police because they were on government to report on the 2006 found a small proportion, just 1 ‘scared or mistrustful’ of them; and the potential terrorist menace in a regular per cent of Muslims, agreed that the remaining 16 per cent did not say why and proportionate fashion? And on two July bombing plots were ‘right’ they would remain silent.20 ministers, asked about alleged plots, – about 11,000 people. There is a These would be alarming findings as John Reid was on Newsnight, to significant age differential in these if they were representative of the respond openly? findings: in the Populus poll, 1 per body of Muslim students in the UK cent of those aged 34 or below agreed who are, as Professor Saggar points Sympathy for terrorism that it was ‘right’, and nobody aged out, a ‘better educated, human However, Shamit Saggar, Professor from 35 or more did; in the ICM July capital-rich group’. However, the of Political Science at the University 2005 poll, the 5 per cent who felt that published survey acknowledges of Sussex and a former adviser in attacks were justified broke down by serious limitations in methodology Prime Minister’s Strategy Unit in age to 7 per cent among the under- and our inquiries indicate that this the Cabinet Office, argues that there 35s, and 2 per cent among those who was an internet-based poll essentially is a significant ‘big known’. He says were older. of FOSIS members who were asked that religious and political extremism However, a NOP poll for Channel also to get their friends and relatives and a mixture of understanding 4 in April 2005 found a very high to fill in the questionnaire. It is and sympathy for those who turn percentage of Muslim respondents disturbing enough in that context, but to violence exists on a large scale – 22 per cent in all – agreed that the it cannot therefore be regarded as a among Britain’s Muslim communities. attacks were justified. The way in random representative poll of Muslim Most commentary on the attitudes which the question was framed may go students, as it has been taken in some towards terrorism among the Muslim some way to explaining this marked commentaries. 21 communities in the UK rightly asserts discrepancy, for they were asked Plainly Professor Saggar is right to the law-abiding and moderate nature whether they agreed with the view express concern about these figures: of Britain’s Muslims. Professor Saggar that the attacks were justified ‘because they represent a form of warning. suggests that there are three layers of British support for the US war on They need also to be interpreted with within the Muslim communities terror.’ One in four of respondents caution as they suggest no more than – the law-abiding majority, ‘the men – 24 per cent – in the YouGov poll in that Muslims are willing to try and of violence’ and the ‘considerable July 2005 expressed sympathy with understand and empathise with the minority’ of Muslims in the middle, the feelings and motives of the four feelings they think the young bombers who express sympathy with the July bombers and over half – 56 per were experiencing. The confused and motives of the July 2005 bombers, cent – replied that, whether or not they equivocal response of young Muslims refuse to judge them, or who ‘would sympathised with the bombers, they in our three focus groups, reported never grass on a fellow Muslim’. He could at least understand why some in Chapter 3, give some context to describes these people as ‘fence- people might want to behave in this these findings. There is an element sitters’ who, as previously in Northern way.19 An ICM poll, published in the of ‘fence-sitting’ here, but it is not Ireland, may provide a ring of actual Sunday Telegraph in February 2006 the whole story. Yet the experience and tacit backing around the terrorists, found 20 per cent of respondents, of terrorism from within minority ranging from sympathy to logistical slightly fewer than in YouGov’s July populations – as for example in support – and silence. Government 2005 poll, agreed that, regardless of Northern Ireland, the Basque country, policy must, he writes, understand, whether they thought the bombings Quebec – has shown that terrorists did persuade and if necessary challenge were justified or not, they had ‘some rely and depend upon the sympathy, the ‘fence-sitters’ – an objective which sympathy with the feelings and silence and support of a ring of people he regards as ‘at least as big a job’ motives’ of those who carried out the within those communities and that it as bearing down on the terrorists London attacks. was when that ring was broken that themselves.16 The results of a survey of Muslim terrorism lost its way. The target then A Global Attitudes Study for the students by the Federation of Islamic is not just the violent minority, but Pew Foundation, published in June Student Societies (FOSIS) have also the ‘considerable minority’ who 2006, also found that Muslims in the provoked concerns. The FOSIS survey would never participate in violence,

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 15 but who may give sympathy and and sisters. Until we feel security, train bombers of March 2004).26 silence. It must be a priority for the you will be our targets. And until Among other aspects of government, the intelligence and you stop the bombing, gassing, international terrorism, the security forces, and the police to get imprisonment and torture of my intelligence and security forces have those who sympathise with the bomber people, we will not stop this fight. revealed that foreign-born militants off Professor Saggar’s ‘fence’. We are at war and I am a soldier. living in Britain are assisting and It is our view that the government’s financing attacks overseas, including Khan’s message also praised Osama counter terrorism laws and the thrust suicide attacks in Iraq against US Bin Laden and Ayman al-Zawaheri, of policy and rhetoric are actually and UK forces; and that British-born Al Qaida’s now dead terrorist chief in doing more harm than good. The militants leave this country to join the Iraq, and al-Zawaheri appeared on vast majority of people, non-Muslim insurgency in Iraq with the assistance the same tape in a separate recording, and Muslim alike, want the police of organisers who remain here.27 praising the ‘blessed battle’ which had and security forces to apprehend the transferred to the ‘enemy’s land’. Al- terrorists. However, mounting heavy Holding the balance Zawaheri later claimed credit for the police raids in pursuit of the ‘violent Confronting terrorism from within as 7 July attacks. It is known that Khan extremists bent on destruction’, well as from without is a fraught and visited Pakistan in 2003 and spent hectoring Muslim parents to spy complex task for any government. As several months there with Shazad on their children, raising a ‘healthy we have pointed out above, first and Tanweer, another of the bombers, debate’ about women who wear the foremost there is the crucial challenge in 2004-05. It is possible that they veil, may play well with the Sun’s of holding the balance between public met Al Qaida figures then and they readers and the electorate at large, safety and fundamental democratic almost certainly undertook training but it is all likely to drive a wedge liberties and values. On safety, as while there; and British intelligence between the Muslim and non-Muslim one participant in the seminar on suggests that they may have received communities and to make it harder to this report in draft commented, ‘the advice or direction in the run-up to 7 win over the minority of those who feel politicians are terrified of failing July. However, whether Al Qaida was sympathy with terrorists in Muslim the people’. But there is also for any involved in or knew in advance of the communities. This model of counter government the fear that it may be attacks is unclear.23 terrorism is as dangerous as terrorism held culpable for a major atrocity or The historical trajectory and itself. a series of blunders and thus lose ideology of Al Qaida is now relatively the public support that its continued The impact of foreign policy familiar. As Phillip Knightley, the existence in power depends upon. So investigative journalist who has ministers will wish to arm themselves There is an international dimension specialised in secret intelligence to terrorism in the United Kingdom, as powerfully as possible against the put it to us, Al Qaida is not a single immediate threat. There is also real in terms of the danger of attacks hierarchical organisation, but by foreign terrorists from overseas, pressure on government to provide should be regarded as a ‘franchise greater assurance of security against specific links with Al Qaida and 24 operation’ or, as the Home Office terrorism – and hard choices have other foreign extremists, and more describes it, ‘a network of networks’.25 generally through the influence to be made as to what to do. Left to The fragmented nature of Al Qaida themselves, a significant number of of ideology and perceptions of the makes its influence, the nature of persecution of Muslims around the the British public would be willing to the threat it poses, or even who see ‘legal niceties’ swept away and world and the UK’s part in such can properly be described as an ‘Al persecution. The Home Office terrorist suspects rendered harmless Qaida figure’ difficult to assess, in suggests, for example, that the 7 July here or removed from British soil by the UK as elsewhere. Who were the bombers were motivated by, ‘Fierce whatever means are necessary. In ‘contacts’ the 7 July bombers had antagonism to perceived injustices a democracy, the government must with people in Pakistan in the run by the West against Muslims and a respond to legitimate concerns and up to the bombings? Who else in the desire for martyrdom’.22 We discuss consider the popular will, especially if UK may have helped ‘radicalise’ or the significance of ummah, the global it wants to remain in power – though incite Khan and the group, or gave Muslim communion which establishes ministers would be well advised to ‘direction and advice’? The fact is that concern for the well-being of Muslims heed Walter Lippman’s celebrated the search for positive links between abroad among their fellows in the warning in the 1930s that public Al Qaida and home-grown terrorism UK, later in this report (in Chapters 2 opinion always leads and lags at has been something of a red herring. and 3). However, the video message the wrong moments. Most certainly, The intelligence community divided of Siddeque Khan, who led the 7 July they ought not to exploit public assessments of the connections of suicide bombers, clearly reveals the concerns and indulge in a politics British-born terrorist individuals and links in his mind between commitment of fear that plays into the hands of networks into three categories: Tier 1 to terrorism in the UK and the terrorists and acerbates community links described a direct link with ‘core’ ‘atrocities’ of the west against Muslims tensions. We hear a great deal about Al Qaida (as in the 9/11 strikes in the around the world. In his message, the poor leadership of the Muslim United States); Tier 2 with individuals communities; but the government and broadcast on 1 September 2005 on Al or groups loosely associated with Al political parties must show responsible Jazeera, he said: Qaida; and Tier 3 those with no links leadership too. Your democratically elected who might be inspired by its ideology. For ‘legal niceties’, of course, read governments continuously Since May 2005 the Joint Terrorism also the rule of law, human rights and perpetrate atrocities against my Analysis Centre (JTAC), the body traditional liberties. This government people all over the world. And which pulls together and analyses all has to its eternal credit secured civil your support of them makes you available data on the terrorist threat and political rights (and given passing directly responsible, just as I am has assessed the majority of terrorist protection to some economic and directly responsible for protecting individuals and networks in the UK as social rights) through the Human and avenging my Muslim brothers belonging to Tier 3 (as did the Madrid Rights Act. The destruction of our

16 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT commitment to democracy and such remit is to review the work and expenditure rights is one of the principal goals of of the security apparatus. The ISC report the current wave of terrorism across referred to is its Report into the London the world. One of the more immediate Terrorist Attacks on 7 July 2005, Cm 6785, May 2006: 26-29. goals of the terrorists is likely to be 9 to exploit the state’s sensitivity to the Ibid, pp. 29 and 30. insecurities of majority opinion to 10 McGrory, D, The Times, 3 June 2006; provoke an over-reaction which could Kirkup, J, Scotsman, 11 May 2006. further alienate the Muslim minorities 11 Interview with Charles Shoebridge, 3 that are the focus of suspicion and thus March 2006. make it easier for terrorists to build 12 See The Independent, 14 August 2006. footholds within those communities. 13 Report of the Official Account of the As we shall argue, a continued Bombings in London on 7th July 2005, HC commitment to the rule of law and 1087, TSO, May 2006: p.30; and Blair, Sir respect for human rights is integral Ian, the Sun, 2 November 2005; Reuters, 2 November 2005; Sunday Times, 9 October to a successful counter terrorism 2005; The Times, 3 June 2006. strategy. We can only defend the 14 Jenkins, S, “The politics of fear”, Sunday democratic and open way of life if we Times, 20 August 2006 demonstrate a continuing commitment 15 ISC report, op cit, p. 31. to its values and practice in the way 16 we actually combat terrorism. (The Interview with Shamit Saggar, 6 March 2006. See further Saggar, S, ‘The one Per abuse of human rights in the conduct Cent World: Managing the Myth of Muslim of the American ‘War on Terror’ is Religious Extremism‘, Political Quarterly, a major obstacle to its successful forthcoming conclusion.) At a more pragmatic level, 17 See www.bbc.news.co.uk, 23 June 2006 the government’s counter terrorism 18 As a third of the Muslim population is aged laws, policy and practice have to be under 16, we have taken as our baseline for informed by human rights canons this calculation a total of 1.1 million. Some of equality and proportionality if the estimates of the potential pool use the 1.6 police and intelligence and security million figure for the total Muslim population agencies are to gain the trust in the as their baseline. Muslim communities that is essential 19 YouGov poll for the Daily Telegraph, to the successful prosecution of published 23 July, 2005. YouGov interviewed counter terrorism in the UK. New laws 526 Muslim adults across Great Britain and new strategies of surveillance between 15 to 22 July 2005. and ‘disruption’ may be required to 20 Federation of Student Islamic Societies, root out terrorism. But they need to The voice of Muslim students: a report into the be introduced and prosecuted with perceptions and attitudes of Muslim students agreement, care and sensitivity. We following the July 7th London attacks, FOSIS, 2005 discuss these matters fully in Chapters 21 4 and 5. Federation of Student Islamic Societies, The Voice of Muslim Students, A report in to the Footnotes attitudes and preceptions of Muslim students following the July 7th London 1 See reports in the Daily Telegraph and Daily attacks, FOSIS, August 2005. Mirror, 17 February 2006 22 Report of the Official Account of the 2 Private information, but see also for Bombings in London on 7th July 2005, HC example, ‘Britain now No1 al-Qaida target’, 1087, TSO, May 2006: 26. Guardian, 19 October 2006 23 ISC report, op cit: 27. 3 See, for example, Silke, A, ‘Fire of Iolaus’, 24 Interview with Phillip Knightley, 30 in Bjørg, T (ed), The Root Causes of Terrorism: December 2005. myths, reality and ways forward, Routledge, 25 Report of the Official Account of the 2005: 242-248. Bombings in London on 7th July 2005, op cit. 4 Ackerman, B, Before the Next Attack: 26 ISC report, op cit: 27. Preserving Civil Liberties in an Age of Terrorism, Yale University Press, New Haven 27 McGrory, D, The Times, 3 June 2006. & London, 2006: 13 5 Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society, A Discussion Paper, Cm 6147, TSO, February 2004: i. 6 See for example Taylor P, Provos: The IRA and Sinn Fein, Bloomsbury 1997: 93 and 129- 130. 7 See the Independent, 1 November 2006 8 The Intelligence and Security Committee, though made up of MPs and peers., is not a parliamentary committee. The Prime Minister appoints its members and they report to him and only through him to Parliament after he has excluded potentially ‘prejudicial’ information from any report. The committee’s

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 17 Chapter 2 rising to nearly half in different regions. The figure for the general population is 15 per cent.11 One in three Muslim households live in The Muslim overcrowded accommodation (as compared to 22 per cent of Hindu, 19 per cent of Sikh and 6 per cent Communities of Christian households).12 Muslim children are especially at risk from child poverty and bad housing conditions; over a third (35 per cent) are growing up in households where here is no such thing as the aftermath of an incident. After the there are no adults in work – twice single monolithic ‘British London bombings, attacks on Muslims the rate for all dependent children; TMuslim community’ that our (and those perceived to be Muslims) and 28 per cent live a household politicians and media discuss. The 1.6 increased, ranging from arson and without a car or van (16 per cent for all million Muslim in the UK, constituting vandalism of mosques to physical dependent children).13 These figures 3 per cent of the UK population, and verbal attacks on individuals.4 are particularly significant for the are remarkably diverse in terms of Thirdly, anti-terrorism policing and future, given the young age profile of ethnicity, generation, British-born or policy in response to such incidents Muslims in Britain.14 In education, the new immigrant, birth-place, class and disproportionately impact on the daily available data indicate that the levels age. Muslims are the largest faith lives of Muslims. of academic achievement of Pakistani group after Christians and like them This triple vulnerability must be and Bangladeshi students are low, but they also differ in terms of religious placed in the context of communities improving. adherence. Census data show that in which many individuals Almost one third of Muslims of nearly half (46 per cent) of Muslims already face social and economic working age have no qualifications, living in Great Britain were born in marginalisation. In the view of the highest proportion for any faith the UK and nearly three quarters Britain’s most senior Muslim police group. But even those with degrees are of Asian ethnic background; in officer, Assistant Commissioner suffer discrimination in employment. 2001, 43 per cent were Pakistani, Tarique Ghaffur, ‘elements of the A major study of the experience of 16 per cent Bangladeshi, 8 per cent Muslim community have become graduates from the ethnic minorities Indian and 6 per cent of other Asian intensely self-reflective, both in terms seeking work found not surprisingly ethnic background.1 There are also of individuals and communities. They that degree classification has a Arab, Afghan, Iranian, Turkish and remain inward looking and are still significant impact on employment. Turkish Cypriot, Kurdish, Kosovar, east in “survival” mode, thinking and Nonetheless, comparing students with European, North African, Somali and feeling victimised, disconnected and first and upper-second class degrees, ‘white’ Muslims. According to Q-news, separated’.5 Pakistani and Bangladeshi graduates the Muslim magazine, there are in had a higher unemployment rate than all 56 ethnicities speaking almost 100 Social and economic all other ethnic groups. In fact, though languages. disadvantage unemployment is generally lower Muslims living in Britain are mainly among students with higher classes young. The average age of the UK Muslims in the UK are of degree than those with lower class population is 40, the average age of disproportionately represented in the degrees, this general rule is reversed the Muslim population is 28. Or put most deprived urban communities. in the case of the Bangladeshi and differently, a third of Muslims are aged Three quarters live in 24 cities ‘Asian Other’ groups. Proportionately under 16 (the national average is 20 or authorities in the five major fewer Bangladeshis with first class per cent) and nearly one in five are conurbations of Greater London, degrees enter into the top three aged 16-24 (national average,10.9 per the West and East Midlands, West occupational groups than any other cent).2 Yorkshire and Greater Manchester.6 ethnic group.15 To understand the responses of One third of the Muslim population Muslims are by far the most British Muslims to counter terrorism live in the 10 per cent most deprived disadvantaged faith group in the legislation and policy it is important to neighbourhoods.7 The concentration British labour market. They are three understand how the current terrorist of Muslims in the poorest city areas times more likely to be unemployed threat impacts on them. First, they indicates not only how far they are than the majority Christian group. are more likely to be the victims of marginalised, but also tends to create They have the lowest employment a terrorist incident than the general confrontational inter-faith and inter- rate of any faith group (38 per cent) population. This is mainly a result ethnic interactions, resulting from and the highest economic inactivity of settlement patterns; Muslims fear and mistrust of the ‘other side’.8 rate (52 per cent). Of young people are concentrated in the large urban ‘Race hate’ assaults on Muslims aged 16-24, Muslims have the highest centres, which in turn are at greater increased substantially over the unemployment rate of all faith groups. risk of an attack. London, the most national average in London and 40 per cent of Muslims are in the likely target of any terrorist attacks, other conurbations after the London lowest occupation groups, compared is home to 40 per cent of the UK’s bombings;9 and Democratic Audit to 30 per cent of Christians. Muslim Muslim population. Thus, although research on the British National men are among the least likely to be Muslims make up only 3 per cent Party indicates that the far-right party in managerial or professional jobs and of the UK population, more than 10 gains electoral support in areas with the most likely to be in low skilled jobs, per cent of the innocent victims of Muslim communities of Pakistani or especially in the distribution, hotel the London bombings were Muslim.3 Bangladeshi origin.10 and restaurant industry. There are also Secondly, Muslims face the brunt Two in five Muslims in England live indications that the deprivation and of any backlash in the immediate in conditions of housing deprivation, disadvantage experienced by many

18 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT Muslims in the UK may also have of applicants with black African names to different faith groups in Britain.25 implications for their health status. In and only 9 per cent for applicants with Levels of dissatisfaction were higher the 2001 Census, Muslims reported Muslim names.21 among young Muslims (16-24 year the highest rates of illness of all faith The 2004 Home Office citizenship olds), of whom 37 per cent felt that the groups. Compared to other faith survey found that the ethnic group government was doing ‘too little.’26 groups, Muslims also have the highest most likely to report facing religious rate of disability. discrimination in gaining employment The prominence of religious were Bangladeshis (13 per cent) and identity Discrimination Pakistanis (9 per cent).22 27 per cent of Discrimination and disadvantage Experiences of discrimination on the Pakistanis, 12 per cent of Indians and on the grounds of their religion grounds of religion may also add to 7 per cent of Africans cited religion as may add to a sense of alienation or the sense of alienation. Evidence is a reason for being refused a promotion disaffection among Muslims in light growing of the extent of Islamophobia in the past five years.23 In 10 opinion of the importance of religious identity or anti-Muslim racism experienced polls since 2002 Muslims have been to them. Evidence from the fourth by Muslims in the UK. Research prior asked if they have experienced Policy Studies Institute (PSI) survey to 11 September 2001 found that hostility and discrimination. Around 30 of ethnic minorities indicates that 95 Muslims were the most likely to report per cent of Muslims consistently report per cent of Muslims consider religion ‘very serious’ problems or experiences experiencing some form of hostility to be ‘very’ or ‘fairly’ important to in relation to seven out of nine directed at them (the actual figures their lives (against 46 and 69 per indicators of unfair treatment.16 80 per range from 20-38 per cent). A poll in cent respectively for white members cent of Muslims reported experiencing July 2005 asked Muslims about the of the Church of England and white some religious discrimination in a kinds of adverse treatment they might Roman Catholics). 27 The Home Office 2004 survey of over 1,000 Muslims experience: Citizenship Survey 2001 indicated conducted by the Islamic Human ● 14 per cent said they had that, for Muslims, religion was the 17 Rights Commission (IHRC). This experienced verbal abuse most important factor in describing large-scale survey echoes the findings themselves after their family. For 28 of a joint study assembled by other ● 3 per cent reported physical Christians religion ranked seventh. Muslim organisations that since violence These findings are supported by other 11 September 2001, 80 per cent of research that has tracked the rise, Muslim respondents reported being ● 5 per cent said they had been since the 1980s, of religion as a more subjected to Islamophobia; that 68 per stopped and searched by police significant marker of identity amongst cent felt that they had been perceived Muslims than ethnicity.29 and treated differently; and that 32 ● 32 per cent felt they had been the This Muslim mobilisation may be per cent reported being subjected to object of hostility; and a response to racism or to the public discrimination at UK airports.18 These devaluation and disparagement of are significant increases from previous ● 42 per cent felt they had been the Muslims and Islam that has led to surveys in 1999 and 2000. object of suspicion. increased in-group solidarity: thus, The IHRC survey found a ‘Islam provides both a positive identity, ‘meaningful relationship between Results from the 2005 Home in which solidarity can be found, religiosity and discrimination’. Only Office Citizenship Survey indicate together with an escape from the about one in seven or eight Muslims that Muslims were the most likely to oppressive tedium of being constantly who describe themselves as ‘highly’ feel that there was ‘a lot’ of religious identified in negative terms’.30 Muslim practising’or ‘practising’Muslims have prejudice in Britain today; a third political activism can also be seen as never experienced discrimination of them took this view, as against in part the ‘politics of “catching-up” while broadly one in four ‘secular’ a quarter of Christians. Over half with racial equality and feminism’.31 and ‘cultural’ Muslims never did (57 per cent) of Muslims in the It is important to understand the so.19 In previous surveys there was a survey said they felt there was more complex and diverse reasons for the significant gender gap, with Muslim religious prejudice in the UK today foregrounding of religious identity by women experiencing higher levels compared to five years ago. One in some Muslims. For example, for some of discrimination than men. It was eight Muslims said that they had young men a strong Muslim identity is assumed that this was because Muslim experienced discrimination because of a way in which to resist stereotypes of women were often more visible than their religion from public bodies, with ‘weak passive Asians’, it can provide men. However, the 2004 survey found 6 per cent reporting discrimination by a positive role model as an alternative the gender gap had closed. The the police. Nearly one in four Muslims identity that they can have pride Islamic Human Rights Commission said they feared being attacked in, in contrast to their parents (who suggests that one probable reason because of their skin colour, ethnic are seen as economically weak and for this is the increase of harassment origin or religion. Nearly half (44 per disempowered) and as an alternative by security forces towards Muslim cent) of Muslims who had experienced to the gang and drug cultures of the looking men.20 unfair treatment in the labour ‘street’.32 A BBC survey seems to indicate market with regard to promotion For young women Muslim identity that discrimination does impact or progression, believed that it was can be an important resource used significantly on Muslims. In 2004, because of their religion.24 to resist parents and to challenge the BBC conducted a survey in The need for protection from family prohibitions. By evoking which fictitious applications were religious discrimination has been a Islamic authority young women are made for jobs using applicants with key demand of Muslim communities able to negotiate greater freedom to the same qualification and work for over 20 years. The Home Office pursue their interests, in education, experience, but different names. One Citizenship Survey 2001 indicates employment and choice of marriage in four applicants with traditionally that one third of Muslims feel the partner.33 Within this diverse range English sounding names secured an government is doing too little to of reasons for the foregrounding of interview, compared with 13 per cent protect the rights of people belonging Muslim identities there are some for

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 19 whom a Muslim identity is developed By the mid-1980s mosques were schools but they are thought to have in opposition to and in rejection of serving a range of functions – as very high attendance, especially ethnic and national identities. places of worship, as venues for amongst young children. It seems The importance of religion religious education of both adults that many Muslim children attend to Muslims has also meant that and children, as centres for the community or church primary schools Muslims have often mobilised as publication of religious tracts, in the day and attend mosque or other a faith community to gain greater and as libraries and bookshops. Islamic schools for up to two hours accommodation of their needs from They offered funeral services and every evening, ‘to learn about their public institutions and organisations. advice on immigration and social religion’.37 The demand for accommodation security and counselling services The quality of education delivered indicates affection rather than for families. Many could obtain through the mosque sector varies disaffection, it indicates a commitment resources to run mother tongue considerably. Some mosques have to Britain and a wish by the younger and English classes. Others tried well-trained teachers and good generation to make themselves more to become effective community resources; in others, teaching is often at home in Britain. The Preventing centres, organising activities for by rote learning with less emphasis Extremism Together working group women, the elderly and the young. placed on understanding and on regional and local initiatives set On a wider front they campaigned exploring ideas. Young Muslims who up after 7/7 notes that ‘most Muslim for social and political changes complete their religious education in organisations and communities favourable to Muslims, acting as the mosque sector are able to recite are asking for changes within the brokers between their communities prayers and read the Koran and have state system rather than outside and the institutions of the wider a basic knowledge of Islam. However, it. Most people want to be part of society.35 they often lack detailed knowledge the mainstream, but a mainstream of the history and traditions of Islam There is growing diversity and that reflects and is sensitive to their – knowledge that would provide 34 disparity in the roles that mosques needs”. them with the tools to fully engage play. A small but growing number Muslim identity is also important with their religion. Thus mosques operate as community centres. For in connecting British Muslims and imams may contribute to the risk example, the London Muslim Centre, to the experiences of Muslims of radicalisation not from what they attached to the East London mosque, in other parts of the world. The preach or teach but from their failure provides facilities for education, health concept of the ummah, the global to adequately teach, inform and and welfare advice, a children’s centre Muslim communion, is central educate young people about Islam and and a gym. However many mosques, to understanding the impact of its place in society and life. while theoretically open to all, exclude international issues on Muslims in the The Muslim campaigning group, others on the basis of gender, ethnicity UK. Participants in our focus groups the Muslim Public Affairs Committee, and generation. These mosques used the metaphor of body in which all suggests that the reluctance of imams provide an important space for first Muslims are a part in describing the and those who control mosques generation male immigrants to resist ummah. The pain and suffering that is to address the political and social assimilation, navigate social exclusion experienced by one part of the body is issues that concern young people, and organise self-help. A case study shared and felt by the other parts. and to involve them in the running of mosques in Bradford found that Thus, Muslim identity provides of mosques, adds to the alienation the leaders tended to deploy Islam as British Muslims with a connection of young Muslims. Others have a resource for the re-construction of to and concern for Muslims in suggested that ‘young British religious, ethnic and other boundaries. Afghanistan, Bosnia, Chechnya, Muslims face a double exclusion: Kashmir, Iraq and Palestine where Their first generation members from wider society and from it is believed Muslims are being resist participation by younger men conventional leadership roles within oppressed, persecuted and humiliated. or women in the mosque life. They their own communities’.38 It is this The emotional connections to feel the gap between their social marginalisation and ignorance that international issues that the concept position previously in Pakistan and organisations that promote violence of the ummah provides is central to their invisibility here. Many are seek to exploit. It has been noted that understanding the levels of anger felt unemployed and the mosque helps to ‘many who have become radicalised by many young Muslims. Interviews address the spiritual and social impact have little knowledge of either Arabic and focus group discussions confirm of long-term unemployment.36 or Islam, what knowledge they do that for many Muslims opposition As first generation male migrants have is either from “recruiters” to specific aspects of British foreign remain in control of most mosques, seeking to radicalise youngsters or policy, most notably the 2003 Iraq war, they reflect their priorities and from radical Internet sites’.39 combines with frustrations at what needs rather than address issues One of the recommendations of are perceived as the double standards of relevance to young people. For the Preventing Extremism Together and inconsistencies in other areas example, the sermons during Friday working group on Mosques and of foreign policy, such as the UK’s prayers are in their mother tongue, Imams was the creation of a Mosques attitude towards Israel’s treatment of rather than English. The imams are and Imams National Advisory Board the Palestinians (see further Chapters often from the country of origin of this (MINAB). The role of this body would 5 and 7). first generation and are less able to be: communicate with and understand the Role of Mosques and Imams world of Muslims born and brought ● To be a repository for good practice No-one knows how many mosques up in the UK. Despite this most young there are in the UK. Estimates range Muslims will have significant contact ● To provide guidelines on the from 1,500 to over 3,000, most of with the mosque as many provide accreditation and eligibility which are in converted buildings, supplementary schooling. There are no of imams and ensure that the often terraced houses. The historian precise data on the number of young profession attracts suitable young Professor Humayun Ansari notes that: Muslims attending supplementary ‘home-grown’ talent

20 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT ● To provide guidelines on legal ethnicity was strong’ among all me question myself.44 requirements for mosques and ethnic minority participants ‘because Shareefa Fulat, Director of the imams ethnicity was deeply connected with Muslim Youth Helpline challenges the the emotional space of “home”: food, assumption that young Muslims are ● To take up the issue of ill-paid family, traditions, a sense of belonging having an idenitity crisis: imams to a community and, in some cases, language. It was associated with ease More young Muslims than we ● To provide training for mosque and familiarity.’ usually give credit for don’t have management committees Indeed, their research (among any real problems straddling two white English, Welsh and Scots as cultures. Most young Muslims are ● To act as a voice for mosques and well as ethnic minorities) found that quite comfortable with their dual imams and as a unifying link ‘perhaps against expectations it would or rather multiple identities as between mosques and imams from seem that ethnic minority participants something that enriches their lives different denominations in the UK (except for black Africans) who lived and from which they can effectively in England were the ones who most choose and pick the best of both ● To encourage the participation strongly identified themselves as worlds. They have become quite of young people and women in British’. However, religion was also a expert at negotiating both worlds mosque structures dominant source of identification for without a second thought and Muslim participants (though no-one are quite comfortable existing in ● To assist mosques and imams in interviewed saw Islam and Britishness and between both – sometimes in playing their role in community as fundamentally incompatible).43 ways that are mutually exclusive cohesion and combating The CRE study also found that and contradictory, but sometimes extremism40 many Muslims dislike being asked to in quite an effortlessly fluid way, rank their various identities: sliding in and out of each as you would change your clothes for Identity Many Muslim participants deplored different occasions. The idea that people can hold within the fact that they were as they saw themselves multiple identities and it, implicitly or explicitly being In her experience, ‘the problem loyalties ought not to seem strange asked to ‘choose’ between these arises when young Muslims are within a heterogeneous nation such two identities [Muslim and British], demanded to belong exclusively to as the United Kingdom, but Britain’s both by the British people and one or the other, and any link to one political classes seem to be undergoing the British government. They felt undermines their belonging to the an ‘identity crisis’ when it comes to very strongly that this test of their other. The reality is that most young considering the conflicting loyalties ‘loyalty’ was both misguided and Muslims are quite critical of aspects of British Muslims. Young Muslims unfair since nationality and religion of both worlds and yet this brings were for us the key group. We held are not mutually exclusive. into question their right to belong. It three focus groups with young people has begun to feel like Muslims must The study continues “Perhaps most of Pakistani origin in Bradford, young be more English than the English critically, British Muslim participants Bangladeshi women in south London, to prove their belonging to Britain argued that the very question made and young Somalis in Waltham Forest; – to not only condemn terrorism but them feel like ‘outsiders’ and served and we report in detail on their views condemn it louder and more frequently to reinforce their attachment to their and experience of life in the UK in the than anyone else – to embrace liberal faith: next Chapter. We also carried out a ideas that even middle England would survey of young Muslims participating I am British from head to toe, but I am not be expected to’. in new media communication on the a Muslim British. So that’s what the It is this attitude, she argues, that net, which we report on here. establishment doesn’t like. They leads many ‘to feel like they belong Out there in the media, young want us to leave the Muslim side wholly to either British society or to Muslims boldly proclaim their sense and stand on the British side. the communities of their parents’ of ease with their various identities. cultures of origin’ and that ‘questions As television producer Navid Ahkter You really feel like an outsider when of Muslims and integration seem to said, ‘I am absolutely British. I am they ask you to choose [between centre around what Muslims must absolutely Pakistani. I am absolutely Islam and Britain]. Why should I accept rather than what they have to Muslim. I am all of those’.41 Shahed choose? Nobody asks you to choose contribute.’45 Alam, a trainee auditor from Oldham, between being a Church of England Opinion polls constantly ask said, ‘All these loyalties – religious and a British. Muslims whether they consider and cultural run parallel and I think themselves Muslim or British first. that is good.’42 In our focus groups the I felt British until this media barrage Ignoring for a moment the problematic young Pakistani men and Bangladeshi came on to the Muslim community. nature of this question, the answer women all declared themselves as It’s questioning me, whether I’m received can depend on the options British, but their feelings of belonging, British or not because someone available. For example, in the Pew either in the UK or their countries is setting the boundary of what it 2006 poll 81 per cent of Muslims in the of origin, were ambivalent. Thus means to be British and they are UK said they considered themselves the young Pakistanis expressed trying to make us fit into that system as Muslim first, 7 per cent British first. the tensions of being Muslims in or be left out of it; but the thing By contrast, in a Sky News poll in a secular and for them decadent is we’ve been here all these years 2005 46 per cent said British first and western society and found comfort and already and I wouldn’t change now Muslim second, 12 per cent Muslim security from living in the Pakistani and they start aggressive talk and first and British second and 42 per community in Bradford. As research it’s not very nice what’s going on cent said they did not differentiate. for the Commission for Racial Equality around us now. So until now, I did This latter option was not available in 2005 found, ‘identification with feel quite British, but it’s making to the respondents to the Pew Poll. In

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 21 the 2006 NOP/Channel 4 Poll, 38 per watching the same TV programmes as community itself between “separatist” cent said they felt strongly that they everyone else: radicals and mainstream groups which belonged to both Britain and to Islam. favour integration and participation.’51 I was brought up on Spiderman and Three quarters of Muslims said that the Teenage Mutant Hero Turtles. their sense of belonging to Britain has The myth of “self segregation” I have a different education and not changed as a result of 7/7; for 14 different interests to my parents.48 The Cantle report into the riots and per cent that their sense of attachment disturbances in three northern towns has increased and for 10 per cent that Anyone who is born here regards in 2001 suggested that white and it has decreased.46 themselves as a Brit regardless minority ethnic communities in those The question of whether Muslims of whether they are Muslim or towns were living a ‘series of parallel feel loyal towards Britain is also shaped 52 whatever faith. I look at European lives’. The nuanced analysis of the by the way in which the question is telly and the American blockbusters issues presented in the report was lost posed. Muslims asked directly about and prefer British irony and in the subsequent public discussion in their own sense of loyalty to the UK understated wit ANY DAY! I also which Muslims alone were perceived indicate high levels of loyalty to find that having grown up here, I to be seeking segregation from wider Britain. In a YouGov poll in July 2005 relate to the literature, programmes, society. Last year Sir Trevor Phillips, and in a ICM poll in 2006, nearly half sense of humour etc more.49 then head of the Commission for of Muslims said they felt ‘very loyal’ to Racial Integration, gave his celebrated the UK and between a third and 42 per The web also reflects a very British warning that Britain was ‘sleeping cent ‘fairly loyal’ to the UK. Only 6 and interest in sport or at least football walking into segregation’. This 5 per cent said they ‘did not feel very and cricket where Pakistani men (the summer politicians of both main loyal’ and those reporting ‘not feeling figures are available only for ethnicity, parties have seized on the idea of loyal at all’ numbered 10 per cent in not religion) play more than the Muslim ‘apartheid’ or ‘separateness’, the YouGov 2005 poll and 2 per cent national average for all men. They now in the context of the menace of in the ICM poll. However, the figures would, as one interviewee said wryly, terrorism, in ways which will actually for those feeling loyal are significantly fail Norman Tebbit’s ‘cricket test’ for drive Muslim communities within lower if the question is framed so that loyalty to English cricket teams, but themselves and which have provoked Muslims are asked to consider how not in football. (In Bradford for our racial attacks on Muslims. loyal they think ‘Muslims’ feel towards research during the World Cup we There is however no evidence the UK. Given the diversity of the saw many Pakistani taxis and houses to support any claims of self Muslim communities in the UK the bedecked with St George flags.) Here segregation – of Muslims preferring failure of Muslims to get this question also are typical exchanges from the to live in Muslim-only areas or even right is hardly surprising. online version of the magazine, The predominately Muslim areas. The The extent to which framing Revival: The Voice of Muslim Youth: evidence does not even support the can affect outcome is best seen in MuslimSisLilSis wrote: does anyone the Bradford review team’s suggestion a question posed in the 2006 NOP/ in its 2001 report that ‘there was a Channel 4 poll. The headline report else think that the flags attached to cars and houses looks so chav? worrying drift towards self-segregation was that 24 per cent of Muslims see among south Asian communities in the the UK as ‘their country’. However, city.’53 A recent study of segregation the actual question posed was, ‘When First Reply: yep totally today i saw the funniest thng this geezer had one at Manchester University, examining you see the British Union flag do you indices of segregation, found that england flag n the other one was feel “that’s my country” or “that’s their levels of segregation had not increased a bangladeshi flag integration or country” ?’. Thus the replies reflected over the past decade.54 There are what,bangladesh aint in the world ambivalence toward the union flag clusters and concentrations of south cup rather than the UK. By contrast, 88 Asian Muslims in particular areas of per cent of Muslims agreed with the Bradford, and these concentrations il be supporting England. statement, ‘when a British team does have grown. But more than half the well in international competitions, growth in the populations in these Second Reply: Yes but I understand such as sporting events, I feel proud’. areas are accounted for by natural it and even respect it. I think we The figure for all people in the UK growth in the population as new should all back England to the hilt was 90 per; and as many non-Muslim migrants have families and are not old and say stuff like “England are and Muslim respondents, 7 per cent of enough to suffer many deaths. gonna win. each group, disagreed.47 At the same time, an academic paper notes that ‘there has been Third reply: But not to the point where Shared cultural experiences movement out from those clusters by we’re chanting WW2 songs and Young Muslims are active participants individuals and families. The movers doing the Nazi salute as the radio in the new media technologies and are those who can afford something was saying this morning, number of they have their own chat rooms and other than the inadequate housing Brits been arrested in Germany for channels on the web and digital associated with low income; they this … muppets.”50 radio. The Muslim Youth Helpline have avoided the unemployment http://www.myh.org.uk/ is a national In fact, the desire to rank identities, endemic where once-welcoming telephone and e-mail counselling saying for example, first I am Muslim industries have failed’55 This picture service which, along with its sister and secondly British, only seems to is confirmed by another academic project Muslimyouth.net, is focused manifest among the more radical finding that by 2000 10 per cent of on young people. The exchanges of elements. Members of Hizb ut-Tahrir Muslims in Bradford were living in young Muslims on these and BBC tend to express a more separatist the more affluent suburban areas. This sites underline feelings of Britishness approach. Rachel Pillai, a researcher shift, the paper argues, is indicative of by referring to shared cultural on migration and citizenship, says: growing class differentiation within the experiences: being brought up in ‘Muslim citizenship is already the British Muslim population of Bradford Britain; going to the same schools; subject of intense debates within the and counters the pervasive myth

22 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT of inner-city segregation. Growing per cent of Muslims said they had a lot for revenge that makes them willing inner-city clustering is therefore being of non-Muslim friends, 25 per cent to sacrifice their integrity, social accompanied by the slow outwards ‘quite a few’ and 21 per cent a few. The standing, personal safety and even movement of British Muslim people. polls also suggest that younger people their lives. The desire for revenge and Further, ‘given ethnic inequalities in are more likely to have non-Muslim the willingness to seek it violently are access to power and resources, the friends than older people and Muslim tied to self worth – feelings of shame, sustained patterns of settlement in women are more likely than Muslim humiliation, loss of face – retribution deprived inner-city living are more men to do so. Some 94 per cent of and deterrence.62 How far such likely to reflect the choices of white, Muslims rejected the idea that feelings may be inspired among British non-Muslim people and institutions’.56 Muslims should keep themselves Muslims by the oppression of other Focus groups for this study revealed separate from wider society.60 However, Muslims abroad or the disadvantages that there were ‘white’ areas where one third of Muslims would like to from which they suffer here is unclear. Bradford’s Asian Muslims would not have Muslims as neighbours. In the same symposium, Jerrold go, but that reasons for this were not Far from being averse to integration, M. Post, former director of the CIA related to a desire for self segregation, many Muslims also tell pollsters that Center for the Analysis of Personality but sprang from fear of racism, ethnic they need to do more to integrate. In and Political Behavior, observed that tensions and racial harassment: three ICM polls, between 33-40 per charismatic figures, especially if they cent of Muslims said Muslims needed are clerics, can play a significant role fear…continues to act as a powerful to do more to integrate, 28-32 per in grooming young men for terrorism constraint on spatial mobility, and cent said the level of integration by and justify killing by quoting verses many families, including some Muslims was about right and 18-26 per from the Koran and invoking the name middle-class households, opt to cent that Muslims had done too much of God.63 Post’s view adds weight to remain in the inner-city ethnic to integrate. In a 2006 Populus/Times the government’s emphasis upon the clusters for defensive reasons… poll over two thirds of Muslims agreed ‘glorification’ of terrorism and attempts many British Muslim families value with the statement that the Muslim to deport ‘preachers of hate’; and residential clustering, for reasons community in Britain needs to do more possibly to the inference that might lie of culture and tradition, familiarity, to integrate into mainstream British behind Eliza Manningham-Buller’s identity, and security. The desire for society. The difference in the results observation in the Intelligence and separation from others is not self- between the polls may reflect a change Security Committee (ISC) report on evident. Their spatial segregation in attitude among Muslims, but may the London bombings that the speed in poorer neighbourhoods also reflect the difference in the way of radicalisation of some of those largely reflects bounded choices, the questions are framed. In the 2005 involved in the July attacks was constrained by structural BBC Multiculturalism poll Muslim unexpected, suggesting that violent disadvantage, inequalities in the views on a whole series of issues on radicalisation ‘could be created in a housing market (past and present), the demands that Britain can make on very short time and through a very worries about racism, and . . . racist new migrants didn’t significantly differ quick process’64 – that is, that their harassment. The geographies from those of the UK population as a leader Khan or another charismatic of British Muslim settlement in whole, issues including for example, figure might have radicalised Bradford reflect the intersection of pledging primary loyalty to Britain, other bombers. However, as Tore class and ‘race’, with poverty as allegiance to the national flag and Bjørgo himself adds, it is important well as racism providing a brake on Crown, integration fully into British to abandon any official tendency mobility for many 57 society and acceptance of the rights of to regard terrorists as the passive In Oldham, one of the other cities women as equal citizens (where there pawns of manipulative masterminds, that experienced disturbances in the was virtually universal agreement at 96 extremist clerics or social, economic summer of 2001, a CRE investigation and 95 per cent).61 and psychological forces. ‘It is more in the early 1990s found that useful to see terrorists as rational segregation was the consequence of Radicalisation and intentional actors who develop racial discrimination in the allocation Understanding why and how young deliberate strategies to achieve of council housing.58 Arguments people are radicalised into violent political objectives.’65 supporting self-segregation become extremism remains limited. But such Be that as it may, the spark that even more difficult to sustain if we understanding of the circumstances ignites violent terrorism requires look beyond the northern mill towns that motivate those who turn to tinder and as yet the significance to London, home to 40 per cent of the extremism and terrorism and what and role to be attributed to a range UK’s Muslim population. Professor external factors can do to create those of backgrounds factors, such as Ceri Peach notes that ‘all Muslims…in circumstances is vital to the UK’s relative socio-economic deprivation, England are currently living in wards long-term counter terrorism strategy. ideology and foreign policy – in other with mixed populations’.59 What can we learn firstly from the words, the tinder – remains unclear. The research literature is reinforced community of experts on terrorism? Dr. The July 2005 bombings in London by opinion polls which indicate that Tore Bjørgo, a leading researcher into ‘overturned’ the police understanding the majority of Muslims are quite terrorism and political violence, has of the processes which turn young integrated into British society. One edited the findings of a conference of Muslim men into radical extremists, indicator of integration is having close 30 international experts on terrorism in as Assistant Commissioner Andy friends beyond the group. In the Oslo. One of these is Dr Andrew Silke, Hayman told the ISC; ‘we were Populus/Times 2006 poll, 87 per cent of of the Centre for the Study of Terrorism working off a script which actually has Muslims said they had a close friend and Political Violence, University of St been completely discounted from what who was a non-Muslim, echoing an Andrews. According to Silke, experts we know as reality,’ he said.66 There ICM poll in November 2004 in which in terrorism have long recognised was previously a tendency to assume only 6 per cent of Muslims reported that a key motivation for those that, for example, men of South Asian having no non-Muslims friends and 11 joining a terrorist cell or organisation or North African origin were more per cent very few. In the ICM poll, 37 ultimately revolves around a desire likely to engage in terrorism, or that

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 23 terrorists were more likely to come relationship with the world that usually such as stoning people found guilty of from socially or economically deprived takes place without ‘radicalisation’. adultery to death. communities. The security forces ‘Radicalisation’ therefore also requires But for many Muslims in the UK, now recognise that the threat is more an interpersonal interaction with other a benign form of Shariah law already diverse and that ‘there is no simple actors who stimulate and influence the plays a significant role in various extremist profile’. Thus the authorities radicalisation process. However, it is aspects of their lives here; it covers have a new ‘script’ that understands also suggested that there is evidence norms and rules on issues ranging that the threat is as likely to come from of radicalisation that does not require from rituals relating to daily prayers, young men who are well ‘assimilated’ a direct external actor directing the dress and dietary rules through into mainstream British society, ‘with process but involves persons going to rules on marriage, divorce and jobs and young families, as from through a process together and inheritance. These laws do not in most those within socially or economically reinforcing the ideas in each other. areas conflict with British law. Thus deprived sections of the community’.67 Finally, ‘social and geopolitical questions that ask Muslims whether The Home Office working groups circumstances . . . may act as an Muslims should be able to live by set up after the July 2005 bombings initiator of an individual process or the rules of Shariah law or whether show that Muslims also differ in they can stimulate the inter-personal Shariah courts should be introduced their views on the causes of violent process’. Thus continuous political do not clearly reflect what their radicalisation. The working group on and media focus and examination of responses mean for no attempt is made engaging with young people noted Muslim communities can generate a to put their answers in the context of in their report that ‘there is no single sense of siege and in turn reinforce a their daily lives as Muslims. Many pathway into extremism – individuals cycle of polarisation. It is within this Muslims organise their lives on the can come from a range of ethnic, context that counter-terrorism policy basis of their understanding of Shariah socio-economic backgrounds’. must be implemented.72 law; in the absence of the official However they recognised that And here it is important to bear in recognition of Muslim personal laws, ‘the one common denominator is the mind Andrew Silke’s warning that the informal Shariah courts have operated existence of an ideology that is rooted state’s counter terrorism measures in the UK since the 1970s. in political grievances but articulated ‘can profoundly affect the nature The Islamic Shariah Council with reference to a mistaken and lethality’ of terrorist violence emerged from attempts in 1978 by understanding of Islam, and the lack and that any analysis of the causes a group of London imams to resolve of legitimate outlets with which young of terrorism which does not consider issues where laws were in conflict. Its Muslims are able to register protest state responses runs the risk of being principal functions include: resolving and dissent’.68 The working group on dangerously ‘limited and flawed’.73 disputes between British Muslims; regional and local initiatives argued It is also important to make a providing religious opinions in answer that it was important to acknowledge distinction between individuals who to questions from organisations or that deprivation was one factor in a are involved in ‘radical’ organisations individuals; and resolving conflicts of chain of circumstances that could (and those organisations as well) and law between civil British and Shariah possibly lead to ‘extremism’, political those individuals who become ‘violent law, particularly in family law. So or religious.69 The working group on radicals’, prepared to use unlawful Muslims asked about the introduction tackling extremism and radicalisation violence to further any radical position. of Shariah law in the UK may be noted that ‘the radical impulse among We need greater understanding about asking for the recognition of religious some in the Muslim community the precise relationship between rules that already operate informally. is often emotionally triggered by these two positions. Some officials we Furthermore, there is ambiguity in perceptions (sometimes true, some interviewed suggested that radical the way the questions are phrased. times false, sometimes exaggerated) organisations, particularly those that Are they being asked whether they of injustices inherent in western are clear in their opposition to violence support the creation of Shariah courts? foreign policies that impact on the (such as Hizb ut-Tahrir, the radical Or the recognition of Shariah law as Muslim world’.70 The working group organisation the Prime Minister a general principle based on freedom on security and policing commented is pledged to proscribe) provide a of religion? Or whether they recognise on the dangers of developing policy mechanism for diverting people that Shariah law is important for some without a clearer evidence base. In away from violent radicalisation, Muslims? Or whether they would like their view it was important to have while others suggested that for to be able to take relevant disputes ‘an interrogation and understanding some individuals such organisations before a court that recognises their of the root causes of terrorism (e.g., provided a stepping stone towards religion? The ambiguities inherent discrimination, deprivation and violent radicalisation. in such questions may account in alienation facing British Muslims; UK part for the different responses they foreign policy; the plight of Muslims Shariah law produce. For example, in 2004, 61 per across the world, etc), their respective In several polls Muslims have been cent of Muslims agreed that ‘so long weight and how they relate to each asked their views about Shariah as the penalties do not contravene other’.71 law. In response between 30 and 60 the British law, they would support An analysis by the Dutch per cent of Muslims indicate that Shariah courts being introduced in government suggests that three they would like to see Shariah law Britain to resolve civil cases within aspects play a role in the process introduced into the UK, and these the Muslim community’. In 2006, 40 of ‘radicalisation’: the individual figures are given great prominence in per cent supported the introduction process, the interpersonal dynamic media reports. But it is necessary to be of Shariah law into areas of the UK and the effect of circumstances. In the cautious in interpreting the responses with large Muslim populations. In the individual process, radicalisation is to questions of this kind, and indeed NOP/Channel 4 in 2006, 30 per cent seen as one possible outcome from the in reporting on them. The Shariah law of Muslims said they wanted to live search for identity. For young people of popular legend among the majority under Shariah law, as practised in in particular the search for identity is is generally portrayed as harsh and countries such as Iran or Saudi Arabia part of the process of defining one’s unforgiving, with cruel punishments while 54 per cent chose to live under

24 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT British law. met a group of Muslim women, she Islamophobia). Canada introduced Shariah courts said, she ‘found exactly the opposite’ 7 Beckford, J, et al. Review of the Evidence a few years ago, but soon abandoned and her conversation with them Base on Faith Communities, London: Office the initiative amidst protests. Dr Aziz ‘challenged her assumption about the of the Deputy Prime Minister, 2006: 39. The Pasha, who has been campaigning for hijab’.75 During the media frenzy that census data can be analysed at the level of Shariah law in family matters through accompanied Jack Straw’s remarks ‘Super Output Areas’ which is equivalent to his Union of Muslim Organisations, about Muslim women who wear of a neighbourhood, these neighbourhoods are classified into 10 deprivation categories based raised the issue with Ruth Kelly, the niqab and the discussion of the on their score on the ODPM Index of Multiple the new Communities and Local veil-wearing woman Muslim class Deprivation. Government Secretary. Meanwhile assistant, what seemed to go largely 8 Pauly, R J Jr., Islam in Europe: integration or many Muslims will continue to act unnoticed, was that in both instances marginalisation?, Aldershot, Ashgate, 2004. with reference to Shariah norms. If the women were not withdrawing or 9 Council for Arab-British Understanding, Ruth Kelly is able to consider the separating themselves from society fact sheet, August 2005. See also The Impact issues dispassionately, she could first but rather seeking engagement with of 7 July 2005 London Bomb Attacks on identify situations where UK law the political process and the labour Muslim Communities in the EU, European prevents Muslims from acting in line market and education system. These Union Monitoring Centre on Racism and with Shariah norms that they wish to ‘conflicts’ emerge precisely because Xenophobia, 2006 observe, and then consult on the need Muslims are seeking to negotiate 10 John, P, et al., The BNP: the roots of its for change. greater participation and integration in appeal, Democratic Audit 2006: 16-17, 28. Actually this sort of official response society. 11 J. Beckford et al., Review of the Evidence has occurred. Since the 1960s While, therefore, there is talk of Base on Faith Communities, Office of the statutory exemptions have allowed for communities ‘sleep walking’ into Deputy Prime Minister, 2006: 40. the slaughter of animals in a manner segregation, the evidence suggests 12 ONS, Focus on Religion, p. 11. required by Shariah norms for the that for Muslims there are no 13 Oxford Centre for Islamic Studies, Muslim 74 preparation of halal meat. In 2004, normative barriers to integration housing experiences, p. 13, Table 3. the Treasury made changes to stamp but rather the barriers that exist are 14 ONS, Focus on Religion, p. 3. duty to enable financial institutions structural. Discrimination and social 15 Conners, H, Tyers, C, Modood, T, and to offer mortgages to Muslims in and economic deprivation remain Hillage, J, Why the Difference? A Closer Look compliance with Shariah norms. central to the experience of Muslims at Higher Education Minority Ethnic Students Secondly, she may consider situations, living in Britain today. Perhaps the and Graduates, Research Report 552, Institute in areas like inheritance, marriage most surprising finding in polls of Employment Studies, 2004, (hereafter, and divorce, where Muslims are not of Muslims is that despite all this, Conners, Why the Difference?) prevented under British law from Muslims remain more optimistic about 16 Weller, P., Fieldman A., and Purdam K., acting in compliance with Shariah the UK, than the UK population as Religious Discrimination in England and norms, but the state does not then a whole. In 2006 half the Muslims Wales, Home Office Research Study 220, officially recognise their actions. polled said they were satisfied with Home Office, Research, Development and Already, for example, changes have the way things are going in Britain, Statistics Directorate, 2001: 105-6. been made to register marriage compared to only a third of the general 17 Ameli, S., Elahi, M., and Merali, A., British ceremonies performed by imams population. Nearly three quarters Muslims’ Expectations of the Government. and so to obviate the need for a civil of the general population were Social Discrimination: Across the Muslim Divide, Islamic Human Rights Commission, ceremony. dissatisfied with the way things are 2004. going, but only two thirds of Muslims. Muslim attitudes towards 18 Forum Against Islamophobia and Racism, integration Footnotes Al Khoei Foundation and the Muslim College, Counter-Terrorism Powers: Reconciling Security Understanding the reality of Britain’s 1 Office of National Statistics, Focus on and Liberty in an Open Society: Discussion Muslim communities is difficult as Religion, London, ONS, 2004: 5-6, available Paper – a Muslims Response, FAIR, 2004: 22. the communities are diverse and in at http://www.statistics.gov.uk/downloads/ The FAIR survey was based on questionnaires a state of dynamic change, both in theme_compendia/for2004/FocusonReligion. send out to Muslim schools, mosques, response to generational changes and pdf (accessed 20 October 2004), (hereafter, charities, Islamic students’ societies, NGOs political events. There is a danger in ONS, Focus on Religion). and members of the community. Over 200 the current climate of intense scrutiny 2 ONS, Focus on Religion people responded to the survey, providing and examination of Muslims in Britain 3 Home Office, Preventing Extremism information on how they had been affected by that stereotypes and prejudicial Together, Report of the Home Office Working Islamophobia. assumptions are circulated in both the Groups, Home Office, 2005:76. 19 Ameli, S., Elahi, M., and Merali, A., British public discourse and in policy circles 4 See: The Impact of the 7 July 2005 London Muslim Expectations of the Government. Social as a common sense that then forms the Bomb Attacks on Muslim Communities in Discrimination: Across the Muslim Divide, basis of policy decisions. For example, the EU, European Union Monitoring Centre Islamic Human Rights Commission, 2004: 26-27 the demand for accommodation of on Racism and Xenophobia, Vienna, 2005 20 their religious needs or more visible and Christopher Allen and Jorgen Nielsen, Ameli, S., Elahi, M., and Merali, A., British Summary Report on Islamophobia in the Muslim Expectations of the Government. Social expressions of Islamic identity can be EU after 11 September 2001, European Discrimination: Across the Muslim Divide, mistaken to be signs of segregation Union Monitoring Centre on Racism and Islamic Human Rights Commission, 2004: 45. when they may in fact be confident Xenophobia, Vienna, 2004 21 See: ‘Shocking Racism in job market’, statements of integration and 5 Assistant Commissioner Tarique Ghaffur, BBC News, 12 July 2004, available on the readiness to participate. Here, even speech to the Association of Black Police BBC website at http://news.bbc.co.uk/1/hi/ the Minister for Communities, Ruth Officers, 6 August 2006 business/3885213.stm (accessed ) . See also Kelly admitted that until 2005 she 6 Richardson, R (ed.), Islamophobia Wilson, J, ‘Muslim says he was sacked for ‘along with many people, probably – issues, challenges and action: A Report wearing a beard’, Guardian, 11 August 2004; thought that some people wear the by the Commission on British Muslims and and Dodd, V, ‘City firm sued for Bin Laden hijab not through choice but because Islamophobia, Stoke on Trent, Trentham jibes’, Guardian, 9 April 2004. they were expected to.’ When she then Books, 2004: 29 (hereafter, Richardson, 22 2003 Home Office Citizenship Survey:

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 25 People, Families and Communities, Home Hunter, S T, and Malik, H (eds.), Islam in 50 www.therevival.co.uk , 9 June 2006. Office Research Study 289, Home Office Europe and the United States: A Comparative 51 Pillai, R., ‘Glorifying terror or silencing Research, Development and Statistics Perspective, Washington, Centre for Strategic political views, Muslim News, 31March 2006. Directorate, 2004: 103. and International Studies, 2002 : 22. See also www.ippr.org.uk . 23 2003 Home Office Citizenship Survey: 31 Modood, T, ‘Muslims and the Politics of 52 Community Cohesion Review Team, People, Families and Communities, Home Difference’, in Political Quarterly, 74 (1), Community Cohesion: Report of the Office Research Study 289, Home Office 2003: 100-115 (Simultaneous publication in Independent Review Team, London: Home Research, Development and Statistics Sarah Spencer (ed.), The Politics of Migration, Office, 2001, p.9. Directorate, 2004: 104. Blackwell, 2003). See also Statham, P, ‘New 53 Bradford Race Review Team, Community 24 For figures in this paragraph, see Kitchen, Conflicts about Integration and Cultural Pride not Prejudice: Making Diversity Work in S, Michaelson, J, and Wood, N, 2005 Diversity in Britain: The Muslim Challenge Bradford 2001 Bradford Metropolitan District Citizenship Survey: race and faith topic report, to Race Relations’, in Cuperus, A, Duffek, Council, see ‘Foreword’ to the report. A K, and Kandel, J (eds.), The Challenge of Department for Communities and Local 54 Simpson L, 2003, ‘Statistics of racial Diversity: European Social Democracy Facing Government, 2006: 21-31 segregation: measures, evidence and policy’, Migration, Integration, and Multiculturalism, 25 Five per cent of Muslims said the OP 24, Occasional Paper 24, Cathie Marsh Innsbruck, Studienverlag, 2003: 126-149. government was doing ‘too much’ and 62 per Centre for Census and Survey Research, cent ‘the right amount’. However, this overall 32 See Archer, L.,Race, Masculinity and University of Manchester. See also Simpson, figure masks significant differences by gender Schooling: Muslim boys and education, Open L, ‘Statistics of racial segregation: measures, and age: Muslim women (37 per cent) were University Press. 2003. evidence and policy’, Urban Studies, 2004, 41, more likely than Muslim men (30 per cent) 33 See Dwyer, C, ‘Negotiating diasporic pp. 661–681. to feel the government was doing ‘too little’. identities: young British South Asian Muslim 55 Simpson, L, ‘On the Measurement and This gender difference is also found in the women’, in Women’s studies international Meaning of Residential Segregation: A Reply Christian, Hindu and Sikh groups. Among forum, 23(4), 2000: 475-486; and her ‘Veiled to Johnston, Poulsen and Forrest’, Urban all respondents the response was: ‘too much’, meanings: young British Muslim women Studies, 2005, 42(7) 1229-1230 20 per cent; ‘right amount’, 54 per cent; and and the negotiation of differences’, in 56 Philips, D, ‘Parallel Lives? Challenging of ‘too little’, 27 per cent. O’Beirne, M, Religion Gender, place and culture, 6(1), 1999: 5; British Muslim Self segregation’, Environment in England and Wales: findings from the 2001 ‘Contradictions of community: questions of and Planning D: Society and Space, 2006, 24, Home Office Citizenship Survey, Home Office identity for young British Muslim women’, pp.25-40. Research Study 274, Home Office, Research, in Environment and Planning A, 31(1), 1999: 57 Philips, op cit, pp. .25-40 Statistics and Development Directorate, 2004: 53-68; and ‘Contested Identities: Challenging 58 25, (hereafter, O’Beirne, Religion in England Dominant Representations of young British Commission for Racial Equality, Housing Allocation in Oldham: A Formal Investigation, and Wales). Muslim Women’, in Skelton, T, and Valentine, CRE, 1993. 26 However, this is lower than for others in this G (eds.), Cool Places: Geographies of Youth age group. O’Beirne, Religion in England and Cultures, Routledge, 1997: 50-65. 59 Peach, C, ‘Muslims in the 2001 Census of England and Wales: Gender and Economic Wales, p. 26. 34 Preventing Extremism Together, Report of Disadvantage’, Ethnic and Racial Studies, 27 Modood, T et al, Ethnic Minorities in Britain: the Home Office Working Groups, Home 2006, 29(4) 629 at 633-634, p.651. Diversity and Disadvantage, Policy Studies Office, 2005: 47 60 NOP/Channel 4 April 2006 Institute, 301 35 Ansari, H, The Infidel Within’ – Muslims in 61 28 M. O’Beirne, Religion in England and Britain since 1800, Hurst, 2004 BBC Multiculturalism poll, August 2005. 62 Wales, p. 20. The survey asked participants 36 McLoughling, S, Muslims and Public Space Silke, A, ‘Fire of Iolaus: The role of state to list the top ten things that would say in Bradford: conflict, cooperation and Islam countermeasures in causing terrorism and something important about themselves. For as a resource for integration, 2002, see: http:// what needs to be done,’ in Bjørgo, T. (ed), Root Muslims, Hindus and Sikhs the top three euro-islam.info/PDFs/seanPuca.pdf paper from Causes of Terrorism: myths, reality and ways were family, religion and the ethnicity. For Islam in European Cities conference forward, Routledge, 2005 Christians, religion was seventh on the list. 63 See Post, J M, ‘The socio-cultural 37 OSI report p. 133. 29 See Bouchner, S, Cultures in Contact, New underpinning of terrorist psychology’, in 38 Preventing Extremism Together, Report of York, Pergamon Press, 1982; Hutnik, N, Bjorgo, T. (ed), op cit, fn 62. the Home Office Working Group, London, ‘Aspects of identity in multi-ethnic society’, 64 Intelligence and Security Committee, Report 2005: 13. in New Community, 12(1), 1985: 298; into the London Terrorist Attacks on 7 July 39 Jacobson, J, ‘Religion and Ethnicity: duel Dittrich, M, Muslims in Europe: addressing 2005, Cm 6785, TSO, May 2006: 29. the challenges of radicalisation, EPC Working and alternative sources of identity among 65 Bjørgo, T., op cit. young British Pakistanis’, in Ethnic and Paper No. 23, Brussels: European Policy 66 ISC report, op cit.. Racial Studies, 20(2), 1997; Saeed, A, Blain, Centre, 2006:.31. 67 N, and Forbes, D, ‘New ethnic and national 40 Preventing Extremism Together, Report of ISC report, op cit. questions in Scotland: post-British identities the Home Office Working Group, London, 68 Preventing Extremism Together, Report of among Glasgow Pakistani teenagers’, in 2005: 64. the Home Office Working Groups, Home Ethnic and Racial Studies, 22(5), 1999: 821- 41 GuardianUnlimited, www.guardian.co.uk , Office, 2005: 13 844, (hereafter, Saeed et al, New ethnic and 30 November 2004) 69 Op cit, p. 44. national questions in Scotland); and Archer, 42 Young UK Muslims, www.bbc.co.uk, 5 70 Op cit, p. 93 L, Race, Masculinity and Schooling: Muslim December 2005. 71 Op cit, p.75 boys and education, Open University Press, 2003, (hereafter, Archer, Race, Masculinity and 43 Ethnos Research and Consultancy, What 72 Policy Memorandum on radicalism and Schooling). is Britishness?, for the Commission for Racial radicalisation, Directorate of General Judicial Equality, November 2005: 39, 42. Strategy, Amsterdam: Ministry of Justice, 30 Gardner, K., and Shuker, A., ‘ “I’m Bengali, 2005: 8-10. I’m Asian and I’m living here”: the changing 44 Op cit: 39-41. 73 identity of British Bengalis’, in Ballard, R (ed); 45 Speech by Shareefa Fulat at Wilton Park, 30 Silke, A., op cit. Desh Pardesh. The South Asian Presence in October 2006. 74 Slaughter of Poultry Act 1967 section .1 Britain, Hurst and Company, 1994: 163. See 46 ICM Poll, June 2006 and the Slaughter Houses Act 1974, section also Saeed et al., op cit; Samad, Y, ‘The politics .36. 47 BBC Multiculturalism Poll, August 2005. of Islamic identity among Bangladeshis and 75 Hinsliff, G, ‘Cabinet colleagues turn on 48 Amran Majid, 28, IT manager from Pakistanis in Britain’, in Samad, Y, Ranger, T, Straw over Islamic veil row’, Observer , 8 Birmingham, on Young UK Muslims, www. Stuart, O (eds.), Culture Identity and Politics: October 2006. Ethnic Minorities in Britain, Avebury, 1996; bbc.co.uk 5 December 2005. and Mandaville, P, ‘Europe’s Muslim Youth: 49 Amer from Chiswick, www.bbc.co.uk , 10 Dynamics of Alienation and Integration’, in December 2005.

26 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT Chapter 3 The Experience of Young Muslims

o explore the tangled issues that person is not really bothered. They’ve learn no respect.’ One Somali also lie at the heart of the experience not got that feeling in there. But when condemned ‘twisted’ teaching on Tand attitudes of young Muslims it comes to Muslims, you get that homosexuality as defiance of God’s who live in the United Kingdom automatic connection. It’s like another making of ‘woman for man.’ in more depth, we organised three Muslim brother or sister, if they get Citizenship for them was not focus groups of young people aged hurt, you get hurt.’ necessarily a badge of belonging. between 18 and 25 in May 2006, For those with British citizenship, All the young people were uncertain talking with young men of Pakistani which came first, their religion of their place in British society. ‘My origin in Bradford, young Somali and or citizenship? ‘Religion first and passport is British but I don’t think I Nigerian men in north east London, foremost,’ said a Bangladeshi. ‘But could ever be seen as British. If a non- and young women of Bangladeshi obviously you are part of society. I am Muslim saw me, it won’t immediately origin in south London. The young part of this society so I’ll contribute be, “he’s British”, it would be, “he’s a Pakistanis and Bangladeshis (if we and I’ll abide by the laws because Paki”.’ This ambivalence about their may so refer to them) were broadly Islam says, “Whatever country you acceptance is plainly long-standing in work or in further or higher are in, abide by the laws as long as it and comes in part from the experience education, the young Africans were doesn’t affect your religious beliefs of racism. A Somali, beaten up for his mostly studying at a further education and practice.” As a citizen here, I mobile phone, said, ‘It was racism. college. These were politically aware think the laws and stuff are fair to me.’ They said they are from this country young people, the Pakistanis and A Pakistani said, ‘People can live as and I am not and don’t deserve to be Bangladeshis inter-acted with whites Muslims and be part of, you know, here – yeah, I have got that a lot.’ One or ‘Christians’ at work and wanted to British society, it doesn’t mean to say Pakistani explained the subtle ways explain Islam to them, they used the that they have to jeopardise any of in which he was marginalised and web, received videos on for example their beliefs, and I think British people ignored at work and how he would the Israel-Palestine crisis, and some of don’t expect you to do that anyway.’ take an opportunity to introduce them, for example, quoted from BBC2 A Somali with citizenship said he himself by offering help, ‘Hello, my Newsnight. The young Pakistanis and valued the tolerance of British society, name’s Imran, would you like any Bangladeshis were British-born and especially in multi-cultural London. help?’ ‘The first thing is that they look held British citizenship: they were He ‘had the vote’ but was not sure it shocked that I can speak English more likely than the Somalis to be was his place to use it. “proper”.’ The group laughed as one active in Muslim community affairs or Most of them valued the freedom and called out, ‘Yeah’, ‘Yeah’. student activities and several of them and opportunities in education and But their unease has become had joined demonstrations against the work that living in the UK brought pronounced since 9/11 provoked the Iraq war. and contrasted their ease here with ‘War on Terror’, and especially since Islam was at the centre of all their the difficulties of life ‘back home’. the July 2005 London bombings. There lives, and most of them described ‘We should be thankful for what we is a sense in which they feel part themselves as practising Muslims. have here, be honest,’ a Somali said. of a besieged community here and There was across-the-board agreement Various of them contrasted life in overseas. A Somali says, ‘Most people about the benign nature of Islam: that the UK favourably with life in other see us as outsiders, as Muslims, as (as the Somalis said), ‘Islam means European nations, especially strongly terrorists. Most people think that if you peace; it doesn’t discriminate between secular France. The Bangladeshi are a Muslim, you must be a terrorist.’ black or white, between men and women welcomed the freedoms to A Pakistani says, ‘People now associate women’; ‘it is about social justice’; be educated and take work, and one being Muslim with terrorism.’ A (or for the Pakistanis), ‘it’s just being explained, ‘having our own opinions Bangladeshi says, ‘It’s like they keep good, good to humanity, good to this and we’ve got our own decisions; pointing at you every time something world, good to yourself, that’s Islam’; again, what I really like about here is goes wrong, you hear it all the time. (or for the Bangladeshis), ‘Again it the multiculturalism.’ Another added, Something goes wrong, they say, “It’s means peace, my religion has helped ‘Women are more respected here than Muslims, they’re doing it”.’ me better myself and the citizenship back home’. The Bangladeshi women I am around’; ‘like you think On the other hand, other women particularly complain of being calmly, you don’t jump up, it covers objected that women were not harassed. One who works in an agency literally everything – and charity respected in the UK – they were said, and tolerance.’ Equally members of treated as sex objects and subject to a the three groups all agreed on the glass ceiling. All these young Muslims When I went to work on the bus, a universality of Islam, they feel part objected strongly to the licence of lot of people would get up and not of the ummah. A young Pakistani young white Britons, the drinking, want to sit next to me. Yeah, and a explained, racist incidents and insults, ‘bad lot of our clients coming in, they’ve ‘If something happens on the other influences’, ‘video clips of violence had their headscarves pulled off. side of the world, any normal British and sex’, and youngsters who ‘don’t They got spat on. At one point, my

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 27 mum is like, “Oh my gosh, is it all cornering them off, and maybe, maybe don’t have the means to protect right for you to wear a headscarf in the future, there may be a view to themselves. America, they just go now?” I was okay about it. If actually, you know, drive people out in there, do their thing. . . . they someone didn’t want to sit next to . . . ’ go and rape these countries, take me, that was cool. Members of the three groups agree whatever they want and then just unanimously that the media fuel come out. They have no regard for Clients were scared even to attend Islamophobia and portray Islam in a [humanity] . . . ’ to use their services; ‘they’d make an negative way – ‘Islam at the moment appointment and they wouldn’t turn For the Pakistanis, too, oil was is the hot topic . . . all of a sudden up because they were too scared to at the root of the invasion of Iraq. the media was bombarding [people] come out of their houses.’ Another But some of them also believed that with negative messages.’ A young says, ‘Ever since the bombings, a lot a US commitment to protect Israel woman said, ‘I know there’s freedom has changed. All the Asians, even inspired Bush’s concern about Iraq of speech, but there has to be some those that don’t wear scarves, they’re and Iran possessing weapons of mass regulation where it affects the whole being picked on.’ The Bangladeshi destruction – ‘any country threatens community in the UK, not just one women also complain that their Israel . . . you concentrate on that community in Bradford or in Tower mosque is prohibited from holding country’, as one of them said. And Hamlets.’ A Pakistani complained that discussions. ‘The brothers, they yet, ‘Israel has probably got the the media gave extensive coverage wanted to have a discussion, I think it worst human rights record from any to a demonstration against the was about the Iraq war . . . after what Middle Eastern country in terms of Danish cartoons that was organised happened [with the bombings] they their invasion of Palestinian territory, by extremists, but far less to a bigger impose laws like you’re not allowed to so if anything they’re probably more peaceful demonstration of ‘civilised have discussions.’ She added that such of a threat in that region, with their Muslims behaving like Muslims’. discussions would clarify issues. ‘My weapons of mass destruction . . . So Another adds,‘They put them into opinion is that the mosques are there, really I think they should get back categories. On the news, you’ll see they are the centre hold of the Muslim out of Iraq and maybe concentrate on Israel, they kill Palestinians every day, community.’ creating democracy in Israel.’ yeah? But when a Palestinian kills an The reaction to the bombing brings Both the Somalis and Bangladeshis Israeli, that will come on the news.’ or perhaps simply accentuates feelings felt strongly that it is President Bush of insecurity. Despite other occasions The impact of foreign policy who is the terrorist through the on which white people had behaved prosecution of the ‘War on Terror’. especially well, the young Somalis feel All these young people were outraged ‘Bush is a terrorist, he is going into that they ‘are on the edge . . . people and shocked by the invasion of Iraq, other countries and killing people like us get deported’. For the Pakistani one woman found it ‘heart-breaking’ and children for no reason,’ Somalis men, Bradford with its large Muslim – ‘so many innocent people get killed.’ agreed. ‘The way the media use the population offers the security of being The Bangladeshis say of the Iraq war, word “terrorism” is wrong. The only ‘with your own people, who you can ‘It was terrible, even if I think about real terrorists are the world leaders relate to’. One man says, ‘We feel safe it now, it really frustrates me . . . it who go and bully people in other to be here and I reckon we’re lucky in was an invasion. I think it was an act countries.’ Furthermore, it is wrong that sense, more than other places.’ of terrorism, I think these soldiers to describe Palestinians as terrorists. Another said, ‘You want to be a bit went in and they terrorised the whole They are rather freedom fighters who cautious. You know, we have been to country for no reason.’ They are have been combating Israeli cruelty equally outraged and upset by what London [but] many people wouldn’t ‘for the last decades’. A Bangladeshi they regard as Israeli oppression of have been out just for the sense of woman demands: ‘What will be your the Palestinians; ‘I get a lot of emails security.’ We asked the Bradford group reaction if your sister is being raped forwarded to me with pictures showing about the next five or ten years. One in front of your eyes, your father is people killing Palestinian children man, recently a father, said he was being killed in front of your eyes?’ and stuff, and women getting raped ‘very, very scared’: One Pakistani man acknowledged . . . They should be shown to the What makes you think we’re going that some Arab regimes were also world because it’s so disgusting,’ says to be still here? Not living, I mean, oppressive. He said, ‘There are one Bangladeshi woman. There is in this country. I use the word kicked basically two groups in Islam, one widespread agreement that the ‘War out, somebody reckons they’re going who is doing cruelty, who is cruel, and on Terror’ is a war against Islam. One to get kicked out, when I say that it’s the other group who is facing cruelty. woman said: more like driven out. “You practice Unfortunately, nowadays if we look your religion or you practice our ‘They found that Islam was one at the map of the world at this stage culture. You’re either Muslim or you’re community that wasn’t going to it’s mostly Muslims who are facing either British, you either stay or you conform to this ideal of norm by cruelty.’ Another said, ‘My view of go back.” It’s one of them. It’s only a few powerful people, including Iraq, I think they are trying to help going to get worse. Surely that would America, and so they were taking but they went around it in the wrong even be on the agenda now, maybe them over. Islam was a big, big way. They could have done a lot more for some bodies. The BNP’s just like obstacle in relation to the oil things to help there, to bettering the an obvious one, but it could be on industry. Most of the oil is found way of life, instead of just waging war.’ the agenda for some other people . . . in the poorest countries [where When we asked, what could the Because you see, also what people can Muslims are] . . . I think it’s all government do to prevent further do is affect what happens at the top at about globalisation and the need to terrorist acts, the response from the government level, and what seems to control – . . . and they’re actually Bangladeshi women was immediate be happening now is . . . there’s almost attacking vulnerable countries. and forceful. ‘Stop invading Muslim a culture starting where you’re kind Things like Afghanistan, Iran and countries would be a good thing. It of like pushing the Muslims down places like that. All these places, would be a start wouldn’t it?’ One and sectioning them off from society, they’re very vulnerable. They woman said that the west should

28 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT intervene in the Israeli-Palestinian motivate Muslims to turn to violence business. When I find out more about conflict ‘where Israel is taking over when Islam is ‘such a peaceful it, then I’ll vote.’ Palestine by force. . . . There’s like religion’. ‘You know, what led them to Nor are they impressed by the grandmothers and the houses are that extreme? Obviously for them to Muslim organisations that the being crushed on top of the people, do do something like that [the bombings], government negotiates with. They you see? So if you’re going to meddle, there must be something wrong.’ do not for example believe that the meddle in a good way and if you’re When asked why some young Muslims Muslim Council of Britain represents not, then just get out’. go to such extremes, they have no them: ‘Who initiated the MCB? . . . I Other than this, there was a more answers about which they feel certain, mean, no-one asked me that “we’re diffuse feeling that the government except to say that such acts are ‘a last going to elect so-and-so people here was placing unfair restrictions resort’ of desperate people. from a certain community” …’; on the Muslim communities and as These are generally young people ‘They’ve basically been invited by the it were targeting the communities who believe that being involved government, and even the way the rather than the minority of potential in society is part of their lives as group has been picked, you know, it’s terrorists. Thus more generally Muslims and who do get engaged in been done quite randomly.’ they wanted a government that civil society and Muslim affairs. But would listen to their concerns, more part of the background to the idea of Cooperating with the authorities education about the nature of Islam, the ‘last resort’ is that they feel that over terrorism more tolerance, and action on equal young Muslims have no effective The question, ‘What would you do if opportunities. voice in the UK – ‘they don’t listen to you know or suspect that someone When our moderator asked the us.’ They regard British democracy is planning a terrorist attack?’ threw young Pakistanis, ‘So is 7/7 in any way as unresponsive and feel that their almost all of them into confusion. related to the conflicts in the outer community as a whole is not properly On the one hand, ‘saving people’s world?’ they were incredulous. ‘Oh represented. Some in the Pakistani lives . . . that is the duty of every no! Come on! Absolutely.’ ‘Definitely.’ and Bangladeshi groups had taken good Muslim’ (as one Somali said). Then a moment later, ‘Forget what part in the demonstrations against the On the other hand, none of them we said, the guy who blew himself up Iraq war. They were greatly heartened was prepared directly to report their apparently, who made the video, he by being part of huge crowds among knowledge or suspicions to the police. said, “until you get your troops out of ‘English people, Christians’ and The Bangladeshi women discussed Afghanistan, Iraq . . .” so it is, he said sharing feelings of ‘commonality’ with this question. ‘I wouldn’t [report it himself, that’s why he did it. He said other sections of British society. ‘It someone to the police] because then it, and it was.’ Did they feel that such was for me the best thing . . . we had it would be like, here we go, Muslims attacks could recur? ‘Yes, because the a whole mixed bag and I was wearing are the bad people again. So I’d fighting in Iraq is still going on.’ my headscarf as well, so I had a lot of really think.’ ‘But,’ interposes another, people approaching me and asking ‘innocent people will die!’ ‘But I’ve Participating in British politics how I felt and my opinion of it,’ said a just caught them red-handed, so they The young people in the three groups Bangladeshi woman. ‘But at the end of haven’t done anything yet.’ all accepted that there was a minority the day it wasn’t worth it, in the sense The main problem with going to the in the Muslim communities in the that the war still went ahead. Such a police was that none of them trusted UK that was extreme or violent, but shame because it just goes to show the police to handle the information it was a small minority; ‘I know some that you don’t have a say. This being with care and sensitivity, and they extremists and they feel isolated’, said a democratic country, our views don’t were fearful that the police might over- one Somali. The group agreed that get taken into consideration.’ react and misuse their considerable the violence was ‘not right’ – I don’t A Pakistani who had demonstrated powers. The shooting of Jean Charles think they know the meaning of it, said much the same thing: ‘When you de Menezes loomed large in their they take the law into their own hands go on demonstrations and you do this minds. ‘A police officer can hold and take other people’s lives, which is and that, you’re there. But have you you, arrest you, on any grounds, for not right’. Another Somali agreed that moved their thoughts an inch or two? example suspicion,’ says a Pakistani. their terrorism was not right, but said, You don’t see anything and you think, ‘They are ruining people’s lives like ‘You can’t blame them . . . they think “What can we do? Some are struggling that you know.’ For him even having they are fighting for innocent people.’ so much to make a point, people in a beard was grounds enough for the He was immediately challenged: ‘Yes, Palestine are blowing themselves up . . police to hold someone on suspicion. but it is not right to go about shooting . let’s make a point”.’ For a Bangladeshi woman passing other people.’ ‘Yes,’ he replied, ‘that is Moderator: ‘You’re saying it was a information to the police meant true, but some people cannot handle last resort. Do you think there’s some ‘you’ll get interviewed for hours it, the pressure, they are not strong justification?’ and hours. Get your house raided.’ people. I can’t blame them . . . How Pakistani: ‘Look, there’s absolutely ‘Yeah,’ said another, ‘you’re one of else can some people react?’ no justification at all.’ the suspects now. You’re made to feel As for suicide bombings, the They are also sceptical about voting. like a criminal yourself.’ She recalled Somalis stated that Islam is against A Bangladeshi woman explained why how the police had ‘disrespected’ her suicide and is for justice; ‘at the end in some detail. She said that MPs mosque, entering with their shoes on of the day, you never want to kill would not look after Muslim interests, ‘and everything’ to make inquiries innocent people.’ Bombings were also not even Muslim MPs because they after July 2005. Thus there are fears bad for the image of Islam and the are part ‘of a bigger group or the either that reporting someone to the Muslim communities. The Pakistanis government’ and therefore represent police might result in their being badly condemned suicide bombings and ‘what the government and the person treated or wrongly charged, or that terrorist acts in this country as at the top is going to do.’ ‘My mum they could themselves be implicated unjustifiable; they see them as a wants me to vote this year and I am – ‘the police will think you are working perversion of Islam. The Bangladeshi unsure about it, so I thought just with him and you are trying to get women were curious about what could let me stay out of the whole dodgy away from trouble’; ‘they might think

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 29 you are in it as well’. There were also fears of reprisals from the putative terrorists or their associates; ‘if he is ready to kill himself, then if he knew I was reporting he would kill me as well’; ‘there are people behind him, and they would say I am an infidel and they would kill me, for what?’; at the end of the day you have to protect yourself.’ Such views provoked this exchange among two Somalis: ‘If I felt that I knew someone was going to kill hundreds of people in a tube station and I didn’t do something about it, I wouldn’t be able to live with myself.’ ‘I know that hundreds of people die but I have to look out for myself.’ Most of the other young people settled for first discussing their dilemmas with a friend or having it out with those whom they suspected; and then, if need be, reporting their knowledge or suspicion to the authorities. ‘I would talk to the person, find out what the hell they are playing at first. Yeah, definitely. And tell them, like, what planet are they on. If they don’t abandon whatever plan they’ve got, I would take it to higher authorities.’ Wouldn’t she be scared? ‘Yes I would. But obviously there’s the curiosity.’ But which authority would they go to? Still not the police, unless they could do it anonymously, but to the imam (if they trusted him, said one). A Bangladeshi woman suggested that the police should demonstrate that they would not target anyone who reported their suspicions to them.

30 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT Chapter 4 The government’s counter terrorism strategy

lmost hidden behind the of Europe Framework Convention on especially as Phillip Knightley, the government’s ‘tough’ talk on the Protection of National Minorities. investigative writer on security Aterrorism and the media’s But there is also a more immediate and spying, warns us that for MI5 obsession with the security forces, political obligation to protect the successfully to gear itself to be able there has been a sensible medium- Muslim communities and in doing so to penetrate terrorist organisations term (and now long-term) counter to protect the British people as a whole would take a minimum of five years.3 terrorism strategy,1 which is as much from further terrorist atrocities. For Omand, the main long-term goal concerned with winning over the Another well-informed politician must be to prevent the radicalisation of younger generation of Muslims and said that he feared the government young Muslims in the new generations their communities in the UK as it is was close to adopting ‘the wrong now growing up in the UK. with giving instructions to Muslim model’, choosing an ideological clash The strategy has four elements leadership groups, creating ‘robust’ rather than seeking to engage with – Prevention, Pursuit, Protection and counter terrorism laws and actively Britain’s Muslims. He deplored the ‘if Preparedness:4 pursuing potential terrorist groups. you are not with us, you are against ● Prevention takes in long-term But only belatedly, has the government us’ approach. Government officials goals, such as working to actually given any prominence to indicate that a wide strategic change reduce tendencies leading to a strategy that has now been in is taking place from engagement ‘radicalisation’, for instance through existence since early 2003. with political Islam and what the helping resolve international However, there are now worrying government regard as Islamist disputes which encourage terrorism signs that government ministers are organisations towards a policy that (a prominent part of the FCO’s submerging this strategy under a seeks to isolate them. duties); ensuring that all citizens dangerously rhetorical stance aimed at Yet there is a thought-out counter in the UK ‘feel fully part of our the majority population. We fear even terrorism strategy – known as society’; fighting the ‘battle of that ministers, and Home Secretary ‘CONTEST’ – that is in large part built ideas’; and introducing legislation John Reid particularly, are seeking (as around the concept of engagement to deter terrorism. some Labour MPs tell us) to restore with the Muslim communities. In the Labour’s appeal to the white working words of Sir David Omand, the first ● Pursuit goes wider than actually class by exploiting anti-Muslim Security and Intelligence Co-ordinator seeking to prevent terrorist attacks sentiment at a particular sensitive time in the Cabinet Office (from 2002-05), and apprehending those involved and taking a tough populist stance this strategy aims to ‘reduce the risk in the disruption of terrorist with Britain’s Muslim communities. from international terrorism so that organisations, through better We discuss later in this Chapter how our people can go about their daily understanding of their capabilities John Reid’s shameful speech avowedly lives freely and with confidence’. and intentions; prosecutions, to Muslim parents was actually Sir David says the words ‘freely deportations, control orders and aimed at the majority population. and with confidence’ are critical. proscriptions of organisations; There are also the comments by Jack The phrase means that while there working with communities; making Straw and other ministers on the should be a sufficient level of security, it harder for terrorists to operate niqab and Ruth Kelly’s demand that it should not entail unnecessary domestically and abroad; and Muslim organisations should address impingements upon basic freedoms targeting their funds. radicalisation or forfeit government of all communities within the UK. funding. It is suggested that these Preserving our freedoms, he notes, is ● Protection entails working various initiatives may be co- part of any ‘victory’ against terrorism.2 to safeguard critical national ordinated. There are two inter-connected keys infrastructure and other sites at risk The dangers of this approach to this strategy: first, gaining vital and maintaining border security. were made vividly clear to us in intelligence that will expose the talking to a prominent politician. terrorists; and secondly, engaging with ● Preparedness means ensuring He told us, ‘Jack Straw’s comments the Muslim communities to obtain that effective contingency arrangements on the veil have removed a taboo. intelligence. are in place. There is a seething issue of people’s Initially, the strategy was for five irritation with Muslims as a group, years only. Sir David Omand says that Perhaps naturally for a government over-reacting, constantly demanding this was a relatively short time-frame, with a strong focus on presentation, special privileges, and so on, all made but political considerations made it has given prominence to the hard worse because there are killers in their planning for ten years, which would end of the strategy, focusing upon midst.’ In our view, the government have been appropriate, more difficult. aspects of policy that seem more likely is under an obligation to protect the The government now describes the to show the public that it is acting to Muslim communities from an anti- strategy as ‘long-term’ as the potential counter the terrorist threat, such as its Muslim backlash. There is in fact a scale of the terrorist threat has become counter terrorism legislation, measures formal obligation under the Council clearer. This is clearly more realistic, against ‘preachers of hate’ and similar

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 31 initiatives (see below) and the pursuit oppression under Muslim rulers in from different backgrounds in the and disruption of potential terrorist several states.) workplace, in schools and within activities. By definition, the media neighbourhoods. The HAC report These key tasks devolve upon the share similar preoccupations. The also described the government’s Department of Communities and Local public scrutiny of the overall strategy ambitious goals for a multicultural Government (DCLG) and the Foreign in Parliament is far from ‘joined-up’ United Kingdom within which there and Commonwealth Office. and so contributes little to pressure would be a real prospect of reducing for a more rounded public policy Multiculturalism, community and the alienation and anger among young Muslims that could potentially inspire to combat and eradicate terrorism. ‘separateness’ Most of the scrutiny has been divided a turning towards violent terrorism. between two select committees, the The Association of Chief Police The government vision is of a UK Home Affairs and Foreign Affairs Officers (ACPO) expressed regret society in which: to the Home Affairs Committee that Committees, and the Intelligence ● young people from different and Security Committee (ISC), a ‘Communities’ was not included as a fifth item in its own right in the communities grow up with a sense committee of parliamentarians – not a of common belonging; parliamentary committee – appointed strategy, stating ‘an opportunity was missed to ensure the elements of the by the Prime Minister. The ISC has ● new immigrants are integrated; an exclusive remit for scrutiny of the strategy that involve communities had prominence and priority’.6 Of intelligence and security agencies and ● course, ‘Communities’ would not have people have opportunities to in effect ‘the intelligence community’ develop a greater understanding of (by agreement with the government, fitted into the neat four Ps structure of the strategy; and we are informed the range of cultures that contribute its remit has been extended in some to our strength as a country; respects to the Defence Intelligence that Muslim community leaders were against giving it too much Staff and the Joint Intelligence ● people from all backgrounds have Committee in the Cabinet Office). prominence. Consequently ACPO’s missing ‘communities’ pillar is largely opportunities to participate in civic We discuss scrutiny of the counter society; terrorism strategy by the ISC and subsumed into Prevention where government sources argue it is at the select committees in more detail in ● racism is unacceptable; Chapter 6; but broadly, the ISC has heart of this strand of the strategy, as well as featuring in the others. specifically ruled out considering ‘the ● extremists who promote hatred are Indeed, one of the architects of efficacy of the Government’s counter marginalised. terrorism strategy’ as a whole while the strategy has informed us that the Home Affairs Committee, the lead assessing the impact of government select committee on these issues, measures on the Muslim communities Multiculturalism has not made the agencies’ activities was very much part of a strategy In broad terms, we believe that part of its inquiries into the broader that was drawn up to emphasise ‘the multiculturalism has served this nation counter terrorism strategy (and is linkages and feed-backs’ between the well. Over the years the customs restricted in so doing, as we discuss action plans. In considering the Home and conduct of ethnic communities below). Office strategy, the Home Affairs have evolved as they adjust to British In its first major report on counter Committee felt it important to develop society just as those of the majority terrorism, the Home Affairs Committee a vision of ‘British identity’ for the 21st population have changed. Some did however assert that the strategy century and to involve young people communities, such as the Hasidic Jews should be more than ‘a set of police particularly in the debate around it. of north-east London, have led more and judicial powers. It must be part The Cantle report on the 2001 riots in or less ‘parallel’ lives in cooperation of an explicit broader anti-terrorism the northern cities put ‘British identity’ with public services. Multiculturalism strategy’.5 Within such a strategy, at its centre, but the government has has given the Hindu and Muslim steadfastly refused to touch the issue. there are two keys to unlocking Sir communities a sense of security, as So its report combined the ‘respect David Omand’s aim of preventing Tariq Modood has shown, while at for diversity’ that is at the heart of the radicalisation of young Muslims the same time it has not promoted multiculturalism with a proposal to in future generations and of isolating segregation, either voluntary or develop a common ground around 6 those who may already have been conditioned by the state. identity to hold UK society together. radicalised: We cannot be certain what direction The committee hoped that this the DCLG might take in relation to First, involving the Muslim and approach would offer a real prospect multiculturalism and ‘separateness’ other communities in a strategy to of reducing the alienation and anger and how far it may take a similar overcome the isolation which too among young Muslims that could view. There is undoubtedly a shift in many Muslim people experience potentially inspire a turning point attitude against multiculturalism by in modern Britain and to win the towards violent terrorism. some politicians and policy-makers, ‘battle of ideas’; and The Home Office’s vision of a associated with Trevor Phillips, the ‘cohesive society’ envisioned a new head of the Commission for secondly, making vigorous efforts in United Kingdom in which there Equality and Human Rights, who has international policies to remedy the is a common sense of belonging declared that multiculturalism is out legitimate and perceived grievances for all communities; the diversity of date and encourages ‘separateness’ that Muslims here, as part of the of people’s different backgrounds between communities. Phillips saw global ummah communion, feel and circumstances is appreciated an urgent need to ‘assert a core of as they view UK and US policies and positively valued; people from Britishness’ across society. Ministers, around the world, most notably different backgrounds have similar and especially David Blunkett, as in Palestine and the Middle East. life opportunities; and ‘strong Home Secretary, have not only (There is no wish here to evade the and positive’ relationships are asserted this need, but have also fact that Muslims also suffer from being developed between people increasingly voiced their opposition

32 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT to ‘separateness’ on the part of the they will go to neighbourhoods minorities was: Muslim communities – even though which are experiencing large-scale Not a flattening process of assimilation the great majority of Muslims are migration for the first time. Over the but equal opportunity accompanied against any such trends (see Chapter next decade, some British cities will by cultural diversity in an 2) and fear the consequences more become minority-majority cities. It atmosphere of mutual tolerance. keenly than any national politician. will be important to re-examine past Ruth Kelly’s new Commission experience to see what has worked The government has indeed begun on Integration and Cohesion, set and what hasn’t. There are legitimate a strategy to ‘reduce race inequalities’, up in August 2006, has the look of a concerns about, for example, what is as the HAC noted. But in doing practical body of experienced people in some areas virtually segregated so, committee members failed to who will seek to build on good practice schooling. Understanding the inter- question the scale of resources that in promoting social cohesion. In her action between structural factors, were being devoted to achieving this opening remarks, Kelly spoke warmly public policies and personal choices target, or to inquire into the likely about the benefits of diversity, but will be vital to the state’s ability efficacy of the PSAs put into place. her speech also contained echoes of effectively to prevent the formation Professor Shamit Saggar suggested Phillips’s views: of potentially harmful ghettoes. The to us that the current PSA targets northern riots are seen by some as on race inequalities were neither we have moved from a period of evidence that multiculturalism is sophisticated enough to focus on uniform consensus on the value failing; the dignified response of particular under-performing groups, of multiculturalism, to one Londoners to the July bombings may among them specific sections of the where we can encourage that be seen in part as a testament to its Muslim communities, nor broad debate by questioning whether success. Professor Tariq Modood enough to escape divisive accusations it is encouraging separateness. argues that civic integration means of ‘special treatment’. 11 For example, Trevor Phillips and others have that there has to be he suggested that PSAs could involve put forward these points of view. ethnically- and gender-delineated These are difficult questions and mutual learning and movement from floor targets for schools, something it is important that we don’t shy both/all sides . . . this is not simply that is certainly controversial and also away from them. In our attempt a matter of compromise but of something that ministers signed up to to avoid imposing a single British multicultural inclusion. Muslim in 2003 in the event that an ‘at risk’ identity and culture, have we ended sensibilities, concerns and agendas group fell any further behind. He up with some communities living should be knitted into society just believed that there were opportunities in isolation of each other, with no as the case with other marginalised for innovative initiatives like this 7 common bonds between them? groups or classes are accepted as that officials in the Home Office democratic equals. Our view is that a re-appraisal of were then beginning to explore. He multicultural policy is in order, but that In his view, ‘if the goal is also suggested that across-the-board the government should not abandon it multicultural integration, then we initiatives for more sensitive policy- or seek a more strongly assimilationist must curb anti-Muslim racism and making for all religions might assist approach. Public policy should be exercise restraint in the uses of in easing some problems that Muslim as secular as possible within what freedom directed against religious and other faith groups experience in is a historically confused situation people’. 8 British society. – for example, on religious schools. Meanwhile, the Home Affairs The narrow focus of the Intelligence Within any minority community, the Committee was not willing to accept and Security Committee (ISC), the practices and attitudes of individuals the Home Office vision at face value. other public body with a responsibility are often at odds with mainstream Members contented themselves for assessing the effectiveness of the opinion; equally people within these in 2005 with observing that it counter terrorism strategy, did report communities are often shocked by was ‘not clear there is a coherent on the overall counter terrorism the extremes of permissive behaviour strategy, developed with the Muslim strategy, but only from within a narrow on the part of the majority. The state community for tackling extremism’.9 intelligence and security remit. 12 should not seek to ‘impose a single They noted that there was However, in its official response British identity and culture’ or impose to the ISC report the government a comprehensive cross-Government restrictions upon cultural expression, described what might be termed the Public Service Agreement except where activities break the law ‘communities’ part of the strategy. target to monitor and reduce or violate human rights standards. Agreeing with the committee that race inequalities between 2005 Indeed, we believe that human ‘actions by the Agencies are only part and 2008, including specific rights should provide a unifying of the response to the contemporary goals to reduce perceptions non-religious baseline for relations terrorist threat,’ the government of discrimination in a wide within Britain’s diverse communities, explained that, through the Prevention range of public services, reduce particularly if they include but extend pillar, it was seeking to address employment inequalities and beyond civil and political rights to take ‘the motivational, facilitational and monitor the progress of minority in economic, social and cultural rights. structural factors that contribute to ethnic communities across major 13 More immediately, we believe radicalisation’. public services, from education to that the re-appraisal should seek housing.10 a balance between diversity and The damaging effect of counter commonality. The dynamics of However, one aspect of terrorism measures multiculturalism are constantly multicultural policy in the UK has It is however astonishing that changing. New migrants will continue been a benign neglect that has allowed neither the government, nor the to enter the UK to meet the needs discrimination and disadvantage to ISC committee, acknowledged of the economy, or to find asylum; ravage the former Home Secretary the potentially damaging effect sometimes they will join settled Roy Jenkins’s founding definition of that counter terrorism measures migrant communities, sometimes that policy. For Jenkins integration of themselves can have in contributing

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 33 to ‘radicalisation’ or in inhibiting Minister for example said on a International experts on terrorism community cooperation in identifying webcast interview posted on the No have long argued that measures of the suspects. The Home Affairs Committee 10 Downing Street website that he kind the government is pursuing can did touch upon this crucial insight was ‘101 per cent’ behind the decision have a profound affect on terrorism in a paragraph reviewing the effects to storm the Forest Gate house. He (see Chapter 2). For example, Dr of terrorism legislation and practice discounted talk of a Muslim backlash, Andrew Silke, of the Centre for the during the Provisional IRA terror saying that Muslims understood why Study of Terrorism and Political campaign: the raid took place. The police and Violence, University of St Andrews, intelligence experts had to follow whom we cited above, warns that the It was suggested to us that previous up information they thought was state’s counter terrorism measures British governments had not been reasonable, he said, and do everything able to combat terrorism without ‘can profoundly affect the nature possible to prevent a terrorist attack. alienating the Irish community. For and lethality’ of terrorist violence ‘I think the Islamic community, like example, the freelance journalist and that any analysis of the causes everybody else, recognises that Paul Donovan believed that the of terrorism which does not consider is what happened’. The Assistant operation in the 1970s of the state responses runs the risk of being Metropolitan Police Commissioner 17 Prevention of Terrorism Act had dangerously ‘limited and flawed’. Andy Hayman issued a half-apology sent the Irish community back into Lord Condon, the former and said the police had ‘no choice’ itself, creating resentment toward Metropolitan Police Commissioner, but to carry out the raid after getting the state and its various agencies. illustrated the risks that flawed ‘specific intelligence’.15 Assistant He believed that little if any legislation ran in the House of Lords Commissioner Ghaffur believes that evidence had ever been produced debates on pre-trail detention of up this sort of incident ‘drip feeds into to suggest that the anti-terror law to 90 days. He warned that ‘the battle vulnerable communities and gradually actually stopped or helped prevent against fundamental Islamic terrorism erodes confidence and trust’. He terrorism and that much of the is a battle that will last for decades also warns of ‘a very real danger that terrorism that was prevented came and perhaps even centuries. It is a the counter-terrorism label is also about as a result of routine policing battle for hearts and minds . . .’ He being used by other law-enforcement which caught terrorists in the act. feared that, on balance, ‘and it is a agencies to the effect that there is Similarly, the Muslim Council very fine balance’, that the extension a real risk of criminalising minority argued that one of the results of the of detention without charge might communities. The impact of this police treating the Irish as a suspect be counterproductive ‘in the sense will be that just at the time we need community had been that the public of encouraging martyrdom rather the confidence and trust of these were encouraged to do the same.14 than preventing it’. The question for communities, they may retreat inside Parliament to decide was: There is often a working acceptance themselves. We therefore need proper on the part of the authorities that accountability and transparency round Having heard what the police ‘heavy-handed’ police raids or the all policy and direction that affects and intelligence agencies are disproportionate use of police ‘stop communities’.16 advocating, what does this House and search powers’ may prejudice This sort of incident also obscures and the other place feel is in the the good relations with the Muslim the more patient work that is being long-term benefit of the country communities that they must ultimately done by the police to win hearts in the fight against terrorism? rely on to stop terrorism. Britain’s most and minds within Britain’s Muslim Even though in one, two or three senior Muslim police officer, Assistant communities. Some forces have individual cases an extension to 90 Commissioner Tarique Ghaffur, has for example begun to develop de- days may help, my fear is what that commented that the impact of stop radicalisation strategies, which might generate in terms of helping and search and passenger profiling on occasion involve engaging and in the propaganda of terrorism. has been to create ‘a strong feeling working with imams who are in the Often there is a misunderstanding of mass stereotyping within Muslim Wahabi/Salafi stream of Islam and about what al-Qaeda is. It is not a communities’. The massive police have a radical understanding, and finite list of several hundred people raid on a house in Forest Gate, east even reputation. Such initiatives are and, once we have ticked them off London, in June 2006 and the shooting more likely to succeed for partners and got them before a court and of one of the two suspects who were like these who oppose violence convicted, we will have stopped subsequently released without charge share enough common ground with terrorism. In Arabic, al-Qaeda did lead to some official recognition of radicalised Muslims that they will means many things. One of its main the need to ‘rebuild’ community trust listen. meanings is a way of looking at in the police. The Metropolitan Police We discuss later the inadequacies life and doing things—a series of offered equivocal apologies and Met of the government’s robust defence of tenets and principles, advocating officers attended a community meeting incidents such as the Forest Gate raid the witness of martyrdom through shortly afterwards as part of an attempt and the widespread use of stop and violent means. The huge publicity to do so. search powers against young Muslims. that has surrounded this debate has But these responses came within But here we record our dismay already generated enormous fear in the framework of an unapologetic that ministers seems to have no law-abiding communities in parts of commitment by Tony Blair and the appreciation of the need to factor into this country. If we now go back and security forces to such raids in the the state’s counter terrorism strategy make it look as though we are going future, even if they could not be sure a sober recognition that the state’s to challenge yet again the point of of the intelligence on which they investigations, tactics of ‘disruption’ 28 days that we have reached, I fear were based. There was no equal and legislative powers will contribute that it will play into the hands of the acknowledgement of the fears and to the problem. (We should say here propagandists, who will encourage anxieties of those communities who that some government officials and young men and women—to all will suffer the effects of any such high-ranking police officers have other intents and purposes, they mistakes in the future. The Prime taken this on board.) are good people—to be misguided,

34 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT brainwashed and induced into acts heightened by military action against western interests; and a continuing of martyrdom. This may be only Iraq.’20 catalogue of cynical intervention, a small part of the tipping point A report by the government’s Joint including the Anglo-French Suez that leads them to martyrdom. But Terrorist Analysis Centre, leaked to adventure, the west’s complicity those who advocate terrorism and the New York Times, explicitly linked in Israel’s failure to follow UN challenging the values of the West US-led involvement in Iraq with resolutions after the 1967 war and will point to this provision, if we terrorist activity in the UK, stating that Israeli settlement policy – all of which go to 90 days, as illustrating why ‘Events in Iraq are continuing to act the invasion of Iraq has anchored in they must challenge our values and as motivation and a focus of a range of Muslim perceptions of western bias norms.18 terrorist-related activity in the UK.’21 and opportunism. The previous day ministers rejected Further, Tony Blair’s arguments The effects of foreign policy the conclusions of a Royal Institute of hardly answer the case that those who International Affairs (popularly known advocate modifying British foreign The scale of terrorism around the as ‘Chatham House’) briefing paper policy are making. Foreign policy world inspired by the wider and diffuse that the Iraq conflict and the UK’s should be made on the basis both movement, centred on Al-Qaida, since subservience to the United States in of the national interest, at home as the 9/11 atrocities is evident for all foreign policy had increased the terror well as abroad, and of international to see and hardly needs repetition threat to the UK. The two specialist law, human rights obligations and here. There is much evidence of the authors, Frank Gregory and Paul ethical considerations.23 The Prime international inspiration of ‘home- Wilkinson, argued in a joint paper that Minister and his colleagues should grown’ terrorists in the UK and their seriously consider the argument that A key problem . . . is that the UK links with terrorist organisations the current policy has trapped the UK government has been conducting in Pakistan and elsewhere, notably in two damaging wars accompanied counter terrorism policy ‘shoulder in the case of the London bombers by great loss of life and abuses of to shoulder’ with the US, not in the and of their leader, Siddeque Khan, human rights; and that it risks leaving sense of being an equal decision- in particular.19 A few young British the British people more unsafe, more maker, but rather as a pillion Muslims are ready to raise money for fearful and less respected around the passenger compelled to leave the and to join forces combating western world, by Muslims and non-Muslims steering to the ally in the driving and British troops in Afghanistan and alike. We should all eschew a knee- seat. There is no doubt that the Iraq and even to undertake suicide jerk anti-American, or anti-Bush, situation over Iraq has imposed missions. reaction to events. We should measure particular difficulties for the UK, The recent US National Intelligence policy against a sober calculation of and for the wider coalition against estimate, the shared verdict of 16 British interests and of the benefits terrorism. branches of US intelligence, sections and disadvantages of any shift away of which were first leaked and then The war, they concluded, had from current policy – as characterised de-classified, states that the Iraq war boosted Al Qaida’s propaganda, either by the instruction of Blair’s has galvanised terrorist violence, recruitment and finances, provided chief of staff, Jonathan Powell, to Sir and that ‘jihadists regard Europe a ‘key training area for Al Qaida Christopher Meyer, on being posted as as an important venue for attacking linked terrorists, and was costly in ambassador to Washington, ‘We want Western interests’. This verdict, on terms of British and US military lives, you to get up the arse of the White which intelligence services in the Iraqi lives, military spending and House and stay there!’ ,24 or its nobler UK agree, may very well finally nail the damage caused to the counter formulation, ‘standing shoulder to the consistent attempts of the Prime terrorism campaign’.22 shoulder’ with the USA in the ‘War on Minister and ministers to deny the The Prime Minister’s response to Terror’. significance of the links between the this barrage of evidence has been It would in our view serve British wars in Afghanistan and Iraq and consistently to argue that the terrorist interests best if the government terrorism overseas and at home. violence pre-dated the ‘War on Terror’ disentangled British policy from its It is also well known that and the two invasions that took place adherence to US foreign policy, which Britain’s security and intelligence after 9/11 and are now being used ‘as need not destroy the benefits of the officials warned Tony Blair before an excuse’ for their actions; and that Special Relationship or put at risk the he committed British forces to the ‘giving in to [their] perverted and US-European alliance. From a human invasion of Iraq in 2003 and were still twisted logic . . . [and] compromising rights perspective, it should bring to warning the government in the weeks on certain aspects of foreign policy’ an end UK complicity in the detention leading up to the London bombings, would not make the terrorists go away without trial of thousands of suspects; that the invasion and then the but would enable them to argue that the rendition of unknown numbers of continuing war in Iraq was increasing the UK ‘was on the run, let’s step it suspects for interrogation and torture; the risk of terrorism in the UK. As the up’. ‘alternative interrogation techniques’ Intelligence and Security Committee To say the violence is all to do and ‘coercive interrogation’ amounting reported in September 2003, a Joint with the Iraq war is easily refuted. to torture in secret CIA prisons and Intelligence Committee assessment At the same time, so it should Guantanamo Bay outside the USA; presented to the government in be acknowledged that western and a willingness to work with February that year warned that the interference and military action in oppressive states that enrol in or collapse of the Saddam regime might the Middle East region goes back are ready to exploit for their own result in the transfer of chemical and at least as far as to the defeat of the ends the ‘War against Terror’. Just biological warfare technology into Ottoman Empire in the First World as with domestic counter terrorism terrorist hands. The JIC assessment War, the British and French creation measures, this international ‘War’ is stated that al-Qaida and associated of imperial protectorates and new likely to ‘profoundly affect the nature groups ‘continued to represent by far states; complicity in the overthrow and lethality’ of terrorist violence the greatest terrorist threat to western or attempted coups against Middle and any analysis of the causes of interests, and that threat would be Eastern governments that threatened terrorism which does not consider the

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 35 responses to the vigour of the US and and Iraq, as evidence. Abandoning uncritical support for UK campaign runs the risk of being Davies said that the FCO was US policy is integral to such a shift in dangerously ‘limited and flawed’.25 working closely with the Home the UK’s current policy. Thirdly, the In our view, it is equally legitimate Office and other departments and government must acknowledge that to consider and examine the impact agencies at countering ‘myths’ and seeking to understand the grievances that the foreign policy has on the ‘radicalisation’ and reaching out to of people in the Muslim world does government’s domestic counter British Muslims in the ‘grey area’ of not entail condoning or supporting terrorism strategy: does it make the extremism, not terrorism. His account terrorist atrocities, and is by contrast British public more vulnerable to is corroborated in the government’s essential to the process of beginning terrorist attack or not? Does it assist response to the 2006 ISC report on the to reach out more effectively to those or hinder the effort to win over the London bombings which also details who are moved by them. Fourthly, a Muslim communities in the UK and efforts to encourage direct dialogue more independent relationship with to shrink the pool of individuals between UK Muslims and ‘mainstream the United States is vital. When John vulnerable to ‘radicalisation’ Muslims’ from abroad. There have Davies was questioned about the themselves or supportive of the been measures like the ‘Empowering need to differentiate the US and UK terrorist cause? Certainly, as Sir voices of mainstream Islam’ roadshow approaches to the ‘War on Terror’ at Bernard Crick, a quondam adviser to enable young British Muslims to the RUSI conference, he was reduced to government on citizenship and encounter Muslim scholars tackling to replying that it was important to community, said on the BBC Radio 4 extremist misinterpretations of Islam understand the ‘shock’ of 9/ll and that Today programme, and a European Muslims conference ‘he did not like to over-emphasise’ the in Istanbul to bring together western differences in the two approaches. ‘It is so glaring to so many intelligent, and Muslim-world Muslim thinkers educated young Muslims that we to reject ‘extremism and terrorism’. Playing down communities have fallen in behind a grossly Additional Arabic and Urdu media mistaken American foreign policy The basics of effective counter FCO spokespeople had been recruited and are not even protesting against terrorism were put in place in the to the Islamic Media Team; and it . . . Even if we can’t change it, intelligence community’s strategy outreach programmes included protests from people in authority formulated in 2003: the use of Al-Jazeera, the Arabic will cool the water of intolerance in 1. intelligence geared to the new some sections of the community.’ satellite news channel, to counter Al Qaida inspired propaganda.27 source of terrorist danger; It was wrong of the government, he Similar policy approaches are set said, ‘to keep denying that the water out in the government’s Countering 2. a commitment to protect the in which the terrorists swim is plainly International Terrorism report of July Muslim communities from the political’. 26 2006. potential backlash from the majority Initiatives of this kind are however population caused by terrorist Swimming against the tide dwarfed in the minds of many attacks; Countering terrorism and Muslims around the world by the 3. an endeavour to gain the trust of ‘radicalisation’ is a key strategic brutal US offensive against the Iraqi Muslim communities, not least priority for the Foreign Office, but insurgency, acquiescence in US because their members are the best FCO officials are plainly swimming opposition to a just settlement between source of intelligence; against the tide. At a recent Royal Israel and Palestine, the abuses, United Services Institute (RUSI) deaths and injuries consequent on the 4. an honest and unsensational conference, David Richmond, director Iraqi war, and collusion in policies account of the dangers and general of the FCO’s defence and of arbitrary detention and rendition. measures required to deal with intelligence, and John Davies, the Regional news channels like Al- them; communications director, set out the Jazeera spread knowledge of these policies the Foreign Office is pursuing activities more widely and intensively 5. and the protection of basic civil to reduce the effects of UK foreign than the western media and reach into liberties. policy on domestic extremism and Muslim homes everywhere. Extremist ‘radicalisation’ and to engage with the and terrorist organisations are able To these conditions we would add Islamic world abroad. skilfully to exploit them through the what should be givens – seeking In a broad review, Richmond web, videos and DVDs. It is clear from consensus across party and in said that the government and FCO the remarks of the young Muslims civil society and genuine public acknowledged that foreign policy did who took part in our focus groups that participation on the measures contribute to radicalisation. It was they are made aware of and deeply necessary. At the political level, the idle, he said, to pretend that UK policy resentful of UK policies in the Middle Prime Minister and ministers have in Palestine and elsewhere had no East (see Chapter 3). It is equally clear often failed to live up to these goals. effect. Specific circumstances could that the limited policies that the FCO Building trust among the Muslim turn grievances against the west and is able to pursue are most unlikely communities is an essential part of western-backed regimes in the Middle to win over the generations of young the counter terrorism strategy. At East from discontent into ‘extremism Muslims to come. the same time, there is real public and violence’ and Al Qaida was quick There are four keys to more positive pressure on the government to to exploit issues like Kashmir, Iraq and policies. It is not too late begin to provide greater assurance of security Palestine. He stressed that the western analyse the impact that UK foreign against terrorism. We recognise that world was not ‘anti-Muslim’ and listed policy has on the Muslim communities in a democracy governments must be positive western initiatives, such as in the UK and abroad. Secondly, responsive to the popular mood. The the NATO intervention in Kosovo, the any such analysis must seriously difficulty for ministers, however well- then EU backing for the Palestinian consider building a more balanced meaning, is that these two necessary, Authority and the commitment to foreign policy in the Middle East, and complementary, objectives can stability and democracy in Afghanistan and especially towards Palestine. clash. Our view is that ministers have

36 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT Implementing the 12 point plan

Prime Minister’s Pledges, 5 August 2005 Official Report Back, The Financial Times verdict, July 2006 7 July 2006 Make it easier to deport and exclude terror suspects Actioned Incomplete Create an offence of condoning or glorifying terrorism Actioned Done Refuse asylum in this country to anyone with a terror link Actioned Done Extend and make more effective powers to strip citizenship from British Actioned Done citizens engaged in extremism Set a time limit for the length of extradition cases involving terrorism Consultation completed Not done Extend detention without charge and improve court procedures for trials Actioned Incomplete involving sensitive evidence Extend the use of control orders to British nationals who cannot be deported Actioned Incomplete Expand court capacity to deal with terror cases Actioned Not done Proscribe Hizb ut Tahrir and the successor organisation Al Mujahiroun Under Review Incomplete Establish with the Muslim community a commission to advise on better integration; review the acquisition of British citizenship Actioned Incomplete [now done] Create new power to close ‘places of worship’ (i.e., mosques) fomenting extremism and ban foreign imams who are ‘not suitable to preach’ ‘Consultation completed’ Not done Toughen border controls Actioned Incomplete but good progress has been made Sources: Countering International Terrorism: The United Kingdom’s Strategy, July 2006, Cm 6888, Annexe A; Campbell, M, and Burns, J, ‘Blair falls short on promised counter- terrorism measures, Financial Times, 7 July 2006. so far stressed the second objective commissioned an as yet unpublished He also promised ‘lots of battles in that they have prejudiced the first. The report that, according to the Sunday the months ahead . . . because of the Prime Minister has promoted policies Times, warns that the linkage of way that the law has been interpreted of repressive legislation, no doubt in databases and surveillance systems in over a long period of time’ – a ‘clear the sincere belief that it is necessary; the UK makes the British people ‘more signal’ that he too was impatient and he and ministers like Hazel spied upon by their political leaders with the judiciary which had ruled Blears, and more recently the Home than any other population in the free that the indefinite detention without Secretary John Reid, have emphasised world’.28 trial of foreign suspects was unlawful a commitment to tough law On top of a considerable body and might also rule against the use enforcement in terms that overshadow of existing counter terrorism and of ‘Memoranda of Understanding’ to and prejudice the vital community criminal legislation, the government enable foreign suspects to be returned aspects of their own government’s has increased its coercive armoury to nations that practised torture. The counter terrorism strategy. with three specific counter terrorism day after, the Sun declared victory over At times, both the Prime Minister measures (the Anti-Terrorism ‘new terrorism laws’. and Home Secretary have forfeited Crime and Security Act 2001, the The ’12 Point Plan’, generated in trust in themselves by politicising Prevention of Terrorism Act 2005 and Downing Street, took Charles Clarke, significant issues involving civil the Terrorism Act 2006) as well as then Home Secretary, and the Home liberties and the rule of law for narrow provisions in other laws.29 Shortly Office by surprise and shattered the political advantage, by embarking after 9/11, the then Home Secretary cross-party consensus on new counter upon short-term rhetorical initiatives David Blunkett set the rhetorical tone, terrorism measures that Clarke had and by seeming to pander more to promising the Labour conference on built up with his Conservative and tabloid newspaper editors than to 3 October 2001 stern action by the Liberal Democrat shadows. Tony building consensus around a balanced state and an attack on existing legal Blair’s plan made proposals that had strategy. safeguards including ‘the constant use not been agreed, or even discussed, We examine the substance of the of judicial review, which has frankly with the two other parties and that 32 legislative and law enforcement become a lawyer’s charter’.30 they were almost bound to oppose. strategy from a civil liberties, or The Prime Minister is especially John Denham, a former Home Office rather human rights, perspective prone to give in to the tyranny of minister and chairman of the Home in Chapter 5. Here we observe that the short term at the expense of a Affairs Committee, described Blair’s the government’s counter terrorism long-term strategy. He for example proposals as ‘half-baked’ and told the policies, often adopted on the hoof, are ratcheted up the rhetoric on 5 August Channel 4 journalist Peter Oborne, part of a long-term authoritarian trend. 2005, a month after the 7/7 bombings, There must be some concern that the From the 1970s onwards, governments when he announced a ‘12 Point Plan’ government agenda is sometimes of both main parties have taken for a ‘comprehensive framework for driven by public and media more and more powers to deal with action in dealing with the terrorist pressure in this area, rather than a terrorism, crime, civil emergencies, threat in Britain’. He declared: concern for what is most effective.33 immigration, public disorder and ‘anti-social behaviour’. In addition, What I’m trying to do here is, and this The proposals were indeed ‘half- Richard Thomas, Britain’s information will be followed up by action in the baked’. At the time, Tony Blair said commissioner, has warned that the next few weeks, as I think you will that the pledges were being acted on government’s flagship ID card scheme see, is to send a clear signal out that ‘now, immediately, or under urgent could lead to Britain sleepwalking into the rules of the game have been examination’. A year later, a Financial a ‘surveillance society’; and he has changed [our italics].31 Times audit found that only four

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 37 points were fulfilled; the remainder white working class community 2005 former Assistant Commissioner had either not been carried out, were through the Murdoch press and not David Veness stressed in a Demos incomplete or would be achieved to have a discussion with Muslims. lecture that taking on those with over a number of years (see table). It suggests that Reid was actually Al Qaida sympathies should take Some actions, such as the expulsion of seeking confrontation. place at community level; ‘if we are ‘preachers of hate’, were virtually still- to stop loose affiliations embedding It was certainly an unrealistic born and the potentially damaging themselves and maturing into cohesive speech, given the difficulties inherent proposal to close places of worship networks, [we] must engage citizens in identifying young ‘radicals’, – i.e., mosques – was soon abandoned. and community leaders as “unlikely especially for their parents; and ill- The 12 points were diverse but shared counter-terrorists”.’ All good advice advised, for if anyone was to issue any two common features. First, they were that seems to have passed John Reid advice of this kind, it should surely populist measures aimed at satisfying by. have been someone from a Muslim the demands of the tabloid press. It Reid’s grand-standing is hardly community. As it was, he was heckled seems that the Prime Minister was conducive to good community by a well-known local activist Abu talking tough to appease the tabloid relations. He and ministers do, Izzadeen who said he had no right to press clamour for new anti-terrorism however, take care to add balancing speak to a Muslim gathering, giving laws, at a moment when they were comments about the ‘law-abiding Reid the opportunity at the Labour dominated by stories railing against majority’ of Muslims when addressing party conference later that month to holidaying ministers. (Tony Blair issues of terrorism, clearly anxious to declare grandiloquently that he would himself was due to go on holiday the make it clear that the terrorist threat allow no ‘no go’ areas in the UK (as if day after his intervention.) Secondly, comes from particular individuals, Izzadeen could accomplish that!). the package was almost certain to not particular communities. But it is Ironically, Reid gave his August alienate opinion within the Muslim in the nature of the media that such speech at a Demos meeting where communities; and it was promulgated qualifications rarely make headlines he drew on a Demos research paper in advance of the deliberations of the or sound bites. There is now opinion advocating the participation of non- Muslim working groups that were set poll evidence that public attitudes state actors in counter terrorism. up after 7/7 to consult people from the towards British Muslims and Islam The same paper warns against re- Muslim communities on combating in general are deteriorating. YouGov positioning ‘security as an area of terrorism, identifying the roots of found in 2005 that 23 per cent felt policy where there is no room for home-grown terrorism (see below) and that practically no Muslims supported question and debate’ and also contains winning trust in those communities. terrorism and two thirds that there this passage: Talking tough is also the hallmark was only a dangerous minority. The of the approach of John Reid, the Leaders must assume responsibility same question in August 2006 found new Home Secretary. Just hours for initiating and maintaining that 18 per cent thought that a ‘large before the police arrests of 25 young sensible debates about security. proportion’ of British Muslims were Britons allegedly plotting to blow Talk might be cheap, not least at extremists, and only 16 per cent up transatlantic airliners in August, election time when parties are that practically no British Muslims Reid spoke bullishly against the trying to position themselves as supported terrorism. A majority of opposition politicians, judges and being the only credible defence people (53 per cent) agreed that Islam, ‘as distinct from fundamentalist others who ‘just don’t get it’, flaying against immigration, terrorism, Islamic groups’, posed a threat to them for not accepting the need to crime or whatever the concern of western liberal democracy, as against ‘modify’ some freedoms ‘in order to the day might be. But when those 46 per cent after the London bombings prevent their misuse and abuse by sound-bites exaggerate the risks or in 2005 and 32 per cent after 9/ll. those who oppose our fundamental seek to reinforce the myth of the all- values and who would destroy all of knowing, all-powerful government, Building trust in the Muslim our freedoms’. He may or may not this type of tactic is not only communities have known that the police were to act cynical. It also leaves the public within hours, but he did know about feeling powerless to act, and our The riots of April to July 2001 in the alleged plot and that action was communities weaker as a result.34 northern cities set the Home Office likely soon. On 20 September Reid working on social cohesion and race The same research paper argues elected to advise Muslim parents to relations. After 9/11 this work took for two-way exchange as opposed keep a close eye on their children and on a new immediacy as officials to ‘public information’, and ‘shared act if they suspected they were being began secretly studying and seeking decision making’ and ‘planning ‘radicalised’. This was spun as his strategies to prevent ‘disaffection’ scenarios’ involving all actors – public, first speech to a Muslim audience. in the Muslim communities turning private and voluntary – in security Yet Reid wrote an article in the Sun into ‘radicalisation’. Their work policy-making, arguing that security is on the day he went to Waltham Forest coalesced in joint working between a ‘participatory project’, that needs to and the speech seemed to be pitched the Home Office and Downing Street be anchored with checks and balances more at a majority television audience Strategy Units, the creation of a and a ‘better informed public’. Another than at putative Muslim parents. The cabinet-level review and finally the Demos paper argues against the 36 journalist Peter Oborne commented to counter terrorism strategy. Early on, strategy of trying to ‘hit back’ against us: the tendency was to concentrate on terrorism in Iraq, Chechnya and socio-economic concerns, building Given that he was asking Muslim elsewhere, saying that the evidence on regeneration, other government families to turn over their children, suggests that strategies to destroy policies in schools, housing and so on, an incredibly difficult thing to terrorism by ‘force of arms’ are not and anti-discrimination initiatives. do, this was not to put it mildly a sufficient to establish peaceful order It was only after the July 2005 sensitive course of action. It shows and ‘increase rather than decrease the bombings that the decision to engage I think that Reid’s real purpose was level of violence and the gap between more directly with the Muslim to have a conversation with the the two sides.’35 And in February communities took practical shape.

38 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT Central government is not used to anything, it was going to increase of them. At the moment there is no or good at participatory politics; the alienation in terms of the Muslim shared understanding about the tendency was to identify community community.38 process by which the individuals leaders and to try and engage with involved in 7 July atrocities ended up Nonetheless, many of those the remarkably diverse, and often as bombers. In the absence of a public involved were supportive, particularly divided, communities through inquiry, there is no open discussion, in light of the broad range of those them. The most significant initiative let alone any agreement, on the part that were asked to participate. A under the ‘communities’ pillar of the that ideology, foreign policy, socio- significant degree of trust was built up strategy was the creation of a series economic deprivations or other factors in the process. But this was prejudiced of Muslim working groups, under the might play in the radicalisation of by the fact that each working group general title of ‘preventing extremism young Muslims and the appropriate was required to provide a maximum together’. Our discussions with measures that might be taken. of three recommendations among participants involved in the working Some Muslim organisations have which the government could pick and groups indicate that many of those suggested that as a consequence choose. The government argues that who were involved were apprehensive, the policies that are being pursued ‘by achieving so much in such a short fearing that they would be used by will not have deep roots and are too time we have ensured that the long government as a cover for further narrowly based on reactive pursuit. term process of preventing violent more draconian security measures. They also suggest that the inquiry extremism within our communities is However, they also felt obliged to process, open to all sides, sharing credible, well informed and evidence- participate. They recognised that this different experiences, hearing all the based right from the beginning’.39 It might not be the ideal mechanism for relevant evidence, and examining and claims that the process has been led by developing the government’s policy weighing up all claims and proposals the Muslim community; Muslims on responses, but it was the only game impartially, would be more important the other hand note that the terms of 42 in town and there was little option but than the eventual conclusions. The reference, timetable and membership to participate and try to influence its government, defensive over the July of the working groups were set by outcomes. bombings and the effects of the Iraq government. According to the report Confidence in the process was also war, was never likely to accede to such of the working groups, ‘most if not all affected by the time frame the working a proposal, constructive though it is. [working groups] see that the solutions groups were required to work to. The lie in the medium to longer term issues working groups were convened over Police measures to improve of tackling inequality, discrimination, August and were required to report trust deprivation and inconsistent by mid-September on immensely Police officers we have talked to Government policy, and in particular complicated issues – coexistence in a recognise that prior to 11 September foreign policy’.40 multicultural society, discrimination they had limited engagement with Sadiq Khan MP, a working group and disadvantage, the roots of British Muslim communities. By member, noted on the first anniversary radicalisation. Most managed three contrast, they had considerably more of the July 2005 bombings that or at most four meetings, and rarely experience of working with black ‘speaking to members of the task with all members of the working Caribbean communities through force now…there is a huge amount groups present. The working group on addressing issues such as gun crime. of frustration. What has happened community security in its report noted The 2000 British Crime Survey, to all the good ideas? Why hasn’t that they which provides data only on the basis an action plan been drawn up with of ethnicity, indicates that in 2000 retained significant reservations time lines?’ He acknowledged that Pakistanis and Bangladeshis had about the Government’s intentions there was some progress but added, the lowest level of satisfaction with and commitment to the process. ‘there is an air of despondency. Only public initiated police contact and This is partly based on the rushed three recommendations have been the lowest levels of confidence in the and poorly organised nature of implemented, and group members feel police. Only 18 per cent of Pakistanis the current consultation process; let down…I worry that the government and Bangladeshis said they were and the impression conveyed by might become the Duke of York ‘very satisfied’ with the service they the dialogue to date that these – marching all these talented British received from the police (compared consultation meetings were Muslims up the hill of consultation to 39 per cent of whites).43 The 2003 designed more for effect than for and dialogue only to march them Citizenship Survey also indicates that any meaningful input.37 down again as very little appears to Muslims have a lower level of trust in have changed.’41 Moreover, within two weeks of the police force than Christians. The government has stated that their being set up, Tony Blair issued Since 11 September 2001, the there were 27 recommendations for his 12 Point Plan (see above), pre- police have taken measures to government to lead on, that three of empting their discussions. The Liberal build trust, creating the National these have been acted on, work is in Democrat peer, Kishwer Falkner, said Community Tensions Team (NCTT) progress on 21 and three remain under that she was to monitor developments in local consideration. However, a central communities and the Muslim Safety completely dismayed within days of recommendation of the working Forum (MSF) to establish an avenue being set up to discover [that the groups for a wide-ranging public for communication between Muslim Prime Minister] was proceeding full inquiry, ‘in order for all the issues to organisations and the police. A speed ahead with a raft of measures, be considered and examined in the Muslim Contact Unit was developed without waiting fot us to come public domain’ has been rejected. within Special Branch, to inter alia up with our recommendations, Many of the community organisations provide community impact assessment or indeed, our analysis of the that we have spoken to believe that of planned operations (though problems. And the raft of measures such an inquiry is vital to ensure that imperfectly, if not at all, for example was completely counter to reducing counter terrorism policies are effective in the case of the Forest Gate and alienation and extremism. In fact, if and communities feel ownership possibly other ‘raids’). They have

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 39 engaged with influential Muslim independent and developed a more but the practice in translating this scholars, for example co-sponsoring proactive role involving closer liaison into substantial outcomes is “work conferences attended by Yousef Al- with the police. It has developed a in progress”. ’48 This report also Qaradawi, the Muslim scholar and protocol for cooperation with the warned that the needs of minority preacher best known for his al-Jazeera police, which ensures more effective faith communities may be significantly programme, Sharia and Life. The influence and access to senior police different from those of the majority police response to Muslim fears of a officers. It has now been able to open faith communities, stating that they backlash in the immediate aftermath of an office with a full-time staff member, have particular difficulty engaging the 7 July 2005 bombings was widely thanks to a start-up grant from the with existing consultation processes praised by many Muslims. Within Greater London Assembly. and accessing funds, yet they are hours of the attacks the Association The police are working hard in likely to be in particular need of of Chief Police Officers gave police other ways to develop networks help: they are often concentrated forces across the country guidance beyond the ‘usual suspects’, some of in areas of severe deprivation, on measures that could be taken to which already exist and are rarely they coincide with minority ethnic counter any backlash, including the commented on (which often suits those communities and they may lack the need to make ‘contact with vulnerable with whom the police are dealing). skills required to engage with wider communities’. The ACPO press release The police are also trying to ‘foster structures.49 on 8 July 2005 set the right tone what we see as new community in seeking to reduce the risks of a leadership and engagement’ by Yet in neighbourhoods where the backlash: trying to engage with the ‘many more social infrastructure has been eroded, articulate, professional, challenging religious institutions – churches, We have to be clear that the people leaders’ who have come to their mosques, temples, synagogues and who carried out these attacks are notice over the past two years and gurdwaras – may well be the only criminals. Whether or not they seek who do not come through the usual existing community organisations, to justify their acts by reference to routes of mosque and community and are certainly likely to be the religion, what they did was mass association. Overall the police believe most substantial community-based murder. No religion supports that. It that attitudes in Muslim communities in terms of active membership, with is therefore absolutely crucial that have shifted and that denial of the as much right to be involved in there be no backlash against any terrorism threat is much less prevalent discussion on neighbourhood renewal section of the community. Any such across all their contacts than it was as, for example, residents’ or tenants’ backlash would simply play into the four years ago. The willingness to organisations.50 hands of the murderers. As well as discuss ways to tackle terrorism has The government’s broader policies taking action to prevent it, police increased, although many of their of regeneration and neighbourhood will deal robustly with any such Muslim contacts feel ‘intimidated’ by renewal, Sure Start and other schemes behaviour that actually takes place. government pronouncements.45 are all of obvious relevance to its The police have also addressed attempts to engage with the Muslim wider community issues and concerns, Working through faith communities; and engagement with most notably initiatives to improve communities faith communities is being built into reporting of anti-Muslim incidents, Faith is an obvious point of the government’s recognition that such as the launch in November 2004 engagement with the Muslim consulting and involving communities of the “Islamophobia – Don’t Suffer communities. Given the tensions in developing effective government in Silence” crime reporting scheme, between faith communities (the talk policy interventions is crucial to their a joint NCTT-MSF project. 50,000 is ecumenical, the rivalries are keen), success. The government recognises information packs were published to central government has turned broadly in principle that the ‘most effective encourage Muslims to report faith hate towards these communities in much interventions’ are often those where crimes.44 of its social cohesion and regeneration communities are actively involved The Muslim Safety Forum is a policies. In 2004 the Home Office in their design and delivery and potentially valuable body. It was set published a review of government ‘where possible in the driving seat’; up by the Metropolitan Police and engagement with faith communities.46 that this principle applies as much was initially something of a talking The government acknowledges that to ‘communities of interest as it does shop. This was mainly down to its recognition of faith communities’ to geographical communities’; that differences in expectations between significant neighbourhood renewal it is important to have input from the police and Muslims on the MSF: and social inclusion role ‘has yet to vulnerable and excluded communities; for the police, it was a useful way be reflected fully in local practice. and that its neighbourhood renewal of ‘reading the temperature’ in the The broad picture is still patchy, with programmes must focus on diversity in Muslim communities; but for the enthusiasm in some areas matched by their strategy and implementation. active MSF members it was a bridge apparent reluctance to involve faith The Neighbourhood Renewal Unit’s to the kind of trust and dialogue that communities in others.’47 Diversity in Neighbourhood Renewal the police have developed with the An earlier report from the Local factsheet highlights the importance black communities over initiatives to Government Association argued that of faith communities. It notes that tackle gun crime. Relations reached faith communities offered not only faith communities are able to draw a low point in early 2005 after MSF a channel of communication within upon significant resources in terms members felt that police ignored the communities themselves, but also of people, networks, organisations their advice not to arrest on arrival a wide engagement. However, the and buildings. The more organised the British detainees released from report noted that ‘there is a low level faith communities have a role in the detention in Guantanamo. Since then, of involvement of faith communities voluntary and community sector however, under the stewardship of an other than the main Christian and ‘are crucial to the provision of able and energetic chairman, Azad Churches . . . the principle that faith local and neighbourhood services Ali, a member of the Islamic Forum communities are valuable partners in areas of long term disadvantage’. Europe, the MSF has become fully in regeneration is widely promoted, Government guidance for local

40 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT strategic partnerships and other 6 See Modood, T, Multicultural Politics: laws and strategy, a Scoping Report for the neighbourhood and community Racism, Ethnicity and Muslims in Britain, Joseph Rowntree Reform Trust, www.jrrt.org. schemes echoes the importance of the Edinburgh University Press, 2006; and Sir uk role that they can play.51 Bernard Crick’s review, ‘Multiculturalism and 30 Quoted in Andrew Blick, How to go to War, Britishness’, Political Quarterly, vol 77, No. 2, The government in its wider Politico’s 2005: 130. 2006. policy and legislative agenda has 31 Prime Minister’s press conference, www. 7 also addressed specific concerns of DCLG News Release 2006/0085, New number-10.gov.uk/output/Page8041.asp Commission on Integration and Cohesion, 24 32 For a full account of the break-up of the Muslim communities. This includes August 2006 the introduction of legislation to cross-party consensus, see Oborne, P, The Use 8 Modood, T, The Liberal Dilemma: Integration and Abuse of Terror: The Construction of a prohibit discrimination on the grounds or Vilification?, Open Democracy, 2006, of religion in employment,52 education False Narrative on the Domestic Terror Threat, http://www.opendemocracy.net/conflict- Centre for Policy Studies, 2006: 7-15. The CPS and the provision of goods and terrorism/liberal_dilemma_3249.jsp pamphlet was published to accompany the services, including public services. 9 House of Commons Home Affairs Channel 4 Dispatches documentary, Spinning 53 The Racial and Religious Hatred Committee, Terrorism and Community Terror, broadcast on 20 February 2006 Act 2006 added to the existing set Relations, HC 165-I, TSO, March 2005: para 33 Oborne, op cit, p.10. of religiously aggravated offences. 175. 34 Briggs, R, Joining Forces: From national Between December 2001 and March 10 Op cit, paras 17-19. security to net-worked security, Demos 2005 2003 there were 18 prosecutions for 11 Interview with Shamit Saggar, 6 March 35 Elworthy, S, and Rifkind, G, Hearts and religiously aggravated offences, 10 2006. Minds: Human security approaches to political involving Muslim victims.54 In 2003- 12 Intelligence and Security Committee, violence, Demos 2005 04 44 cases involving a religious Report into the London Terrorist Attacks on 7 36 Private information element were reported to the CPS, half July 2005, Cm 6785, May 2006. 37 Preventing Extremism Together, Report of of them on behalf of Muslims. In 23 13 Government Response to the Intelligence the Home Office Working Groups, London: of the 34 cases involving a religious and Security Committee’s Report into the Home Office, 2005, p.73 element were reported to the CPS in London Terrorist Attacks on 7 July 2005, Cm 38 Quoted in Oborne, op cit, p. 33. 2005-5 the actual or perceived religion 6786, TSO, May 2006: 7 39 55 Letter from Home Office to members of the of the victim was Muslim. 14 Home Affairs Committee, op cit: para 171. Working Group However, our discussions with 15 www.news.bbc.co.uk/2/hi/uk_news/ 40 Preventing Extremism Together, Report of those close to such interventions politics/50563618.stm (6 June 2006) the Home Office Working Groups, London: and appreciative of the value to 16 Assistant Commissioner Tarique Ghaffur, Home Office, 2005, p.3 Muslim communities of policies speech to the Association of Black Police 41 Speech by Sadiq Khan MP to the Fabian designed to remedy disadvantage in Office 6 August 2006 Society, 3 July 2006. education, housing, neighbourhoods 17 Silke, A., ‘Fire of Iolaus: The role of state 42 Preventing Extremism Together, Report of and health, constantly come back to countermeasures in causing terrorism and the Home Office Working Groups, London: the discrepancy between such ‘good what needs to be done,’ in Bjørgo, T. (ed), Root Home Office, 2005, p.3 Causes of Terrorism: myths, reality and ways stuff’ and the relentless march of anti- 43 A. Clancy, M. Hough, R Aust and C. forward, Routledge, 2005 terrorism legislation and insensitive Kershaw, Crime, Policing and Justice: the policing. The public discourse around 18 House of Lords Debates, 13 Dec 2005 : Experience of Ethnic Minorities. Findings from the legislation, highlighting issues Column 1175. (Terrorism Bill, House of Lords the 2000 British Crime Survey, London: Home of immigration and nationality, is Committee Stage) Office Research, Development and Statistics particularly alienating for Muslims. 19 See Suskind, R, The One Per Cent Doctrine, Directorate, 2001, p. 49. ‘Nobody ever talked about taking Simon and Schuster, 2006, as well as the ISC 44 Press Release, 16 November 2004, Forum away Gerry Adam’s nationality, or report, op cit 14. Against Islamophobia and Racism deporting him to the Irish Republic,’ 20 Intelligence and Security Committee, Iraqi 45 Private information. one prominent Muslim complained to Weapons of Mass Destruction – Intelligence 46 Home Office, Working Together: Co- us, semi-humorously. It is to the new and Assessments, Cm 5972, September 2003: operation Between Government and counter terrorism laws and coercive paras 126-127. Faith Communities, Home Office Faith 21 state action that we now turn. Sturcke, J, ‘Intelligence “warned of Iraq Communities Unit, 2004. terror link”’, Guardian, 19 July 2005 47 Neighbourhood Renewal Unit, Involving Footnotes 22 Gregory, F, and Wilkinson, P, ‘Riding Pillion Faith Communities, Office of the Deputy for Tackling Terrorism is a High-risk Policy’, Prime Minister, 2004: 1. 1 See Countering International Terrorism: The Chatham House Briefing Paper, ISP/NSC 48 Local Government Association, Faith and United Kingdom’s Strategy, Cm 6888, TSO, 05/01, July 2005. July 2006. Community, LGA Publications, 2002: 13. 23 See Burall, S, Donnelly, B, and Weir, S, Not 2 Interview with Sir David Omand, 16 January 49 Local Government Association, Faith and in Our Name: Democracy and Foreign Policy Community, London: LGA Publications, 2002: 2006. in the UK, Politico’s, 2005 3 4. Interview with Phillip Knightley, 30 24 Meyer, C, DC Confidential, Weidenfeld & 50 Neighbourhood Renewal Unit, Involving December 2005. Phillip Knightley, the former Nicholson, 2005 Sunday Times special correspondent, is author Faith Communities, London: Office of the 25 Op cit, see fn 17. of The Second Oldest Profession and other Deputy Prime Minister, 2004: 1. books on matters of security and war. 26 Crick, B, interview on BBC Today 51 Neighbourhood Renewal Unit, Diversity in programme, 19 July 2005 4 The strategy can be accessed at: http:// neighbourhood renewal factsheet, Office of the security.homeoffice.gov.uk/counter-terrorism- 27 Richmond, D, and Davies, J, addresses Deputy Prime Minister, 2005: 4-5 strategy/counter-terrorism-strategy/ House of to the Royal United Services Institute 52 Employment Equality (Religion and Belief) Commons Home Affairs Committee, Terrorism conference, ‘Politics and Terrorism’, 15 Regulations 2003 and Community Relations, HC 165-I, TSO, February 2006; Government Response, op cit, 53 Equality Act 2006 fn 10, p.7. March 2005: para 179. 54 Racist Incident Monitoring Scheme, Annual 28 5 ‘Memorandum submitted by the Association Rogers, L, ‘British the most spied upon Report 2002-2003, Crown Prosecution Service. people in the western world,’ Sunday Times, of Chief Police Officers’, 14 September 2004, 55 Racist Incident Monitoring Scheme, 29 October 2006 House of Commons Home Affairs Committee, Annual Report 2004-2005, Crown Prosecution 29 Terrorism and Community Relations, HC 165- See Blick, A., and Weir, S., The Rules of the Service II, Written Evidence TSO, December 2005: 3. Game: the government’s counter terrorism

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 41 Chapter 5 The Effect on Human Rights

uman rights have been to the Labour party conference , ‘It essential basis for an effective counter- among the first casualties cannot be right that the rights of terrorism strategy, for protecting the Hof the government’s ‘War an individual suspected terrorist be public, for intelligence gathering on Terror’. Human rights, finally placed above the rights, the life and and for asserting and upholding the given systematic effect in British limb of the rest of the British people. values of a modern and pluralist law in 1998 by the very government It cannot be right – it is wrong, no democracy. Respect for the rule of which now finds them so irksome, ifs, no buts, it’s just plain wrong.’ But law and individual rights is especially are being ‘hollowed out’ across the these are false dichotomies: ‘suspects’ important to the state’s dealings board - from the ancient rights of are members of the ‘majority’. They with people within the Muslim habeas corpus, liberty and a fair trial are innocent until proved guilty, communities who can be essential to the protection of private life and their rights and those of the majority allies in counter-terrorism strategy. privacy and freedoms of association hang together. (It is a miserable fact, The fact is that civil and political and expression. The authorities are however, that thanks to its constant rights are constitutive of democracy even taking an equivocal stand on the use, the word ‘suspect’ is now charged and the rule of law. These rights are prohibition on torture, which ought with the presumption of guilt – so the sinews of the two basic principles to be a non-negotiable hallmark of much that the Guardian recently wrote of representative democracy – that our democracy. In the judgment of of ‘alleged terrorist suspects’.) the citizens of a country ultimately Amnesty International, since the US exercise control over their government, declared the ‘War on Terror’ in 2001, The balance between human and that they share equally in the UK authorities have ‘mounted a security and liberty that control. Such principles are sustained attack on human rights, the meaningless in the absence of civil Human rights – or the rule of law independence of the judiciary and the and political rights. Citizens must be and civil liberties – are the basic rule of law’.1 In rather more restrained able to debate issues freely in civil foundation stones of a modern language, Parliament’s own Joint society, to communicate with each representative democracy. In the heat Committee on Human Rights (JCHR) other and to associate and act together of post-7/7 debate, it is often blandly has been saying much the same thing if they are to judge the policies and stated that Britain faces a choice, or to the government, MPs and peers in actions of governments and act upon a ‘trade off’, between security and successive reports on counter terrorism those judgments. These freedoms human rights 4, but this is an illusory legislation and policy since 2000.2 are equally integral to democracy choice that must be challenged. The Yet as we shall argue, human rights within the sphere of civil society, ‘trade off’ that is emerging is between give Britain a valuable framework for allowing society and communities the largely undisturbed rights of the preserving respect, responsibilities to adapt and develop the values and and tolerance in our society and vast majority of people and the rights convictions that provide an overall offer the best long-term prospect of of members of minority communities normative framework for the policies countering and ending at least ‘home- and foreign inhabitants of the UK. and conduct of governments of all grown’ terrorism. Counter terrorism As Cherie Booth said in her lecture colours. Protests and demonstrations experts agree that it is crucial in after 7 July, ‘it is all too easy for us to are an important and legitimate part counter terrorism policy and practice respond to such terror in a way which of these processes so long as they are to uphold democratic and human undermines commitment to our most peaceful. All these activities must take rights principles and to maintain deeply held values and convictions place free from the surveillance and moral and ethical standards. Increased and which cheapens our right to interference of government and the repression and coercion are likely to call ourselves a civilised nation’. It state unless it is necessary to protect feed terrorism rather than reduce it. is therefore important to stress that the lives and livelihood of citizens and Extremist ideologies that promote human rights and human security are their democracy; and there must then hatred and terrorism should be not polar opposites that dictate trade be safeguards in place to ensure that confronted on ideological grounds by offs; and that, indeed, Britain’s human surveillance powers are not misused. investing more effort into challenging rights obligations under the European Otherwise citizens will not feel free them politically.3 It is necessary to Convention on Human Rights are to make use of their civil and political adapt to the dangers that terrorism actually drawn up specifically to allow rights. poses, but the kinds of changes that for states to respond to emergencies, Equally people must be protected the Prime Minister and current Home such as a campaign of terror, but not from arbitrary arrest, imprisonment Secretary are advancing to the ‘rules unconditionally. and torture. Habeas corpus and the of the game’ are damaging to the rule of law are the hallmarks of British very substance of human rights and Respect for the rule of law freedoms. As Albert Venn Dicey, the justice in the UK. Tony Blair talks of Far from being antithetical to effective 19th century authority on the British ‘rebalancing between the rights of anti-terrorism laws and measures, constitution wrote, ‘When we say the suspect and the rights of the law- respect for the rule of law and civil that the supremacy of the rule of abiding majority’. John Reid declared and political rights provides the law is a characteristic of the English

42 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT constitution, we generally include strictly required by the exigencies targeted in that way.8 under one expression at least three of the situation . . .’ It is important She also backed the police distinct though kindred conceptions, to stress how severe and imminent argument that the purpose of stop We mean, in the first place, that no an emergency must be to justify a and search activity is to disrupt man is punishable or can be made to derogation: it must threaten the life of and deter terrorism rather than to suffer in body or goods except for a the nation. Only a few key rights are apprehend terrorists. She explained distinct breach of law established in non-derogable: in particular the right that their use helps ‘to deter all kinds the ordinary legal manner before the to life (Article 2), the prohibition of of terrorist activity by creating a hostile ordinary courts of the land …’ This torture (Article 3), and ‘no punishment environment for would-be terrorists to tradition – of the security of the person without law’ (Article 7). But derogation operate in’.9 Since, as we show later and due process alongside the right should be a temporary response that (page 49), these powers fall heavily to life and civil and political liberty is supposed to last only as long as and too often indiscriminately on – occupies a significant place in the an emergency demands; Britain’s Asians as a proxy for Muslims, they European Convention, which is in counter terrorism laws are liable to be also create a ‘hostile’ environment effect modern Britain’s Bill of Rights. entrenched for good, depending upon for many non-terrorists in their decisions made around the promised communities. Reconciling human security and Terrorism Consolidation Bill. We accept that the activities of the liberty From 9/11 onwards there have been intelligence and security services Few human rights protected under the warnings from the parliamentary Joint and police are bound to impact European Convention are absolute. Committee on Human Rights that the disproportionately on the communities The Convention makes specific British government is failing to meet among whom terrorists ‘falsely hide’, allowance for the government lawfully such standards. As early as November but the surveillance and ‘disruption’ to reconcile the needs of security 2001, the JCHR concluded that the that ensues should as far as is with the protection of democracy and Anti-terrorism, Crime and Security Act humanly possible be ‘targeted’ on human rights. In fact, government 2001 (ATCSA 2001), then still in bill individual suspects as distinct from plans to limit the democratic rights of form, did not on the evidence available the communities, should be justifiable free speech, association, information to its members always strike the and should be subject to effective and assembly may legitimately be balance between freedom and security checks. The government’s approach justified under a wide variety of ‘in the right place’.6 The challenge to to counter terrorism has also been ‘recognised aims’: national security, established democratic and human part of wider attempts to break with public safety, public health or morals, rights principles has since continued. basic human rights and long-accepted for the prevention of public disorder Earlier this year, the JCHR, reporting traditions of criminal justice in the or crime, or to protect the rights and on the control orders regime operated UK – for example, protections for the freedoms of others. The Convention by the government since 2005, argued rights of the accused, habeas corpus also insists upon strict tests of the need that the lack of safeguards led to – to introduce summary justice and to for any limits on civil and political ‘significant concerns about whether… restrict jury trial. The Prime Minister’s rights. The measures taken must be this regime…is compatible with the impatience with aspects of the criminal ‘necessary in a democratic society’ rule of law and with well established justice system is not unjustified, – that is, they must fulfil a pressing principles concerning the separation and he is right to argue that the need and serve a ‘recognised aim’; of powers between the executive and state’s primary duty is to safeguard they must be proportionate to the need the judiciary’.7 the safety of its citizens (along of or danger; they must be ‘prescribed Further, the ‘trade off’ between course with anyone else in the UK’s by law’ and conducted with regard security and freedom is falling jurisdiction). But his formulation of to due process; they must be non- disproportionately on certain this duty suggests that ‘law-abiding discriminatory; and they must conform communities in the UK, as Hazel people’ should be protected at the to the democratic values of ‘pluralism, Blears, then the Home Office minister 5 expense of people, law-abiding or not, tolerance and broad-mindedness.’ responsible for counter terrorism, guilty or not, accused of a crime or In general, the executive’s laws and told the Commons Home Affairs misdemeanour for which they have practice should be subject to the Committee in 2005: scrutiny and judgment of the courts; not stood trial. Human rights must the independence of the judiciary Dealing with the terrorist threat exist for everyone equally or they are should be respected; and its actions and the fact that at the moment worthless. Everyone is equally entitled should be subject also to effective the threat is most likely to come to be presumed innocent until found procedures for democratic oversight. from those people associated guilty: an innocent person suspected If the government wishes to curtail with an extreme form of Islam, of a crime is one of the ‘law abiding human rights, it should also do so or falsely hiding behind Islam… people’ who the Prime Minister formally through taking a derogation, inevitably means that some of our believes should be ‘allowed to live in rather than evading the human counter-terrorist powers will be safety’. If they are denied a fair trial rights issues that its conduct raises. disproportionately experienced by under due process, they are denied In practice, the European Court of people in the Muslim community. their right to live in safety. What Tony Human Rights has given states a wide That is the reality of the situation, Blair is actually saying is that some a wide degree of latitude in protecting we should acknowledge that reality innocent people may be punished or national security, preventing public and then try to have as open, as locked up because current safeguards disorder or crime, or for similar goals. honest and as transparent a debate mean that some guilty criminals and Further, under Article 15, states may with the community as we can. terrorists whom the authorities ‘know’ take measures in an emergency There is no getting away from the to be guilty walk free. derogating from its human rights fact that if you are trying to counter Visiting Britain late in 2004, Alvaro obligations ‘in time of war or other the threat, because the threat at Gil-Robles, the Council of Europe public emergency threatening the the moment is in a particular place, Commissioner for Human Rights, life of the nation . . . to the extent then your activity is going to be ‘was struck…by the frequency with

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 43 which I heard calls for the need to Communications Interception Warrants issued in England and Wales under RIPA, re-balance rights protection, which, 2001-04 it was argued, had shifted too far In force on in favour of the individual to the Year Issued 31 December Modifications detriment of the community’. Amongst 2001 1314 464 1788 the ‘targets of such rhetoric’ was 2002 1466 515 1885 ‘prevention of terrorism’, alongside 2003 1878 705 2525 criminal justice and asylum. But, he 2004 1849 674 3101 emphasised ‘human rights are not a pick and mix assortment of luxury entitlements, but the very foundation ‘a political, religious or ideological UK counter terrorist policy and human rights compliance, 2005 of democratic societies. As such, their cause’. The definition was immediately UK Law or Action Authority Protected Human Right Actual or Possible Violation violation affects not just the individual criticised in 2000 for being too wide concerned, but society as a whole; and vague to satisfy the clarity Definition of terrorism Terrorism Act 2000 (TA 2000) Articles 10 and 5, European Convention on Human Vague and catch-all character. Possible we exclude one person from their required for the criminal law. The Rights (ECHR) enjoyment at the risk of excluding all danger is that it widens offences under of us’.10 the counter terrorism laws, creates too Power of arrest of suspected terrorist TA 2000 Article 5 ECHR The danger of arbitrary arrest is potentially reduced by the creation of the new offence of In our scoping report on counter much discretion in the way in which Acts Preparatory to Terrorism. Vague definition of terrorism, The Rules of the Game, they may be applied, leaves room for terrorism renders it liable to abuse we set out a full analysis of the main political bias and could be used to Pre-charge detention of up to 28 days Terrorism Act 2006 (TA 2006) Articles 3, 5 and 6 ECHR Enables police to detain without charge for proposals of the then Terrorism prosecute people active in legitimate excessive period of time; could amount to ill- Bill 2005. We found that some new social or political movements who treatment and denial of liberty and right to fair offences – of preparing terrorist acts, are exercising their rights. Amnesty hearing. Possible International argued in 2005 that training for terrorism, making or Indefinite detention of foreign terrorist suspects Part Four of the Anti-Terrorism, Articles 3 and 5 ECHR; Article 4 of the International Enabled Home Secretary to detain suspects who possessing nuclear devices, etc – were offences in counter terrorism laws without charge or trial Crime and Security Act 2001 Covenant on Civil and Political Rights (ICCPR). The could not be tried; discriminatory against foreign valuable or acceptable in principle, but based on the Terrorism Act 2000 may (ATCSA 2001, this part now UK has taken out derogations. Article 8 European nationals; disproportionate response to the threat; they often replicated existing law and not amount to ‘recognizably criminal defunct) Convention for the Prevention of Torture and Inhuman ill-treatment of detainees. Actual were generally too widely drawn and offences’ under international law. or Degrading Treatment or Punishment. Ruled in 11 violation of Articles 14 and 15 ECHR by Law Lords, so vulnerable to abuse. Since then, Thus arrests, detention, charge and 16 December 2004. we have encountered doubts among trial in connection with an offence intelligence and law enforcement bolted onto this definition may lead to Control orders, enabling restrictions of freedom Prevention of Terrorism Act 2005 Articles 3, 4, 5, 6, 8, 9, 10, 11 and Article 1 Entails severe restrictions on the liberty of suspects on individuals by Home Secretary, based on at (PTA 2005) Protocol 1 ECHR without the right to a fair hearing; overrides due officials about whether these new laws injustice and risk further undermining least partially secret evidence process and separation of powers; amounts to ill- are, in the Home Secretary’s term, ‘fit of human rights protection and the treatment; discriminatory against foreign nationals; for purpose’. ‘As a general point,’ we rule of law in the UK.’13 The JCHR has denies freedom of speech and association; were told, ‘the further you go away noted that counter terrorism measures interferes with rights of family members. Actual from a “core” offence, the harder it is based on the wide 2000 definition Proposed deportation of terrorist suspects with Deportation power has statutory Article 3 ECHR; Article 3 UN Convention Against Runs risk of tacit compliance with torture and ill- to investigate. There are four tiers of ‘are capable of application to speech diplomatic assurances against ill treatment expression in Immigration Act Torture and Other Cruel, Inhuman or Degrading treatment of individuals who cannot be prosecuted; involvement; the actual terrorist act, or actions concerning resistance from destination state 1971 Treatment or Punishment (UNCAT) guarantees produced by destination states cannot to an oppressive regime overseas.’ be relied upon; difficult to monitor compliance. the conspiracy, the incitement, the Actual assistance. The more links in the chain The committee argues that unless a away from the offence will make it narrower definition of terrorism ‘which Detention or bail of terrorist suspects ‘pending’ Section 3 Immigration Act 1971 Article 5 ECHR Abuse of 1971 Act allows authorities to hold harder to prove both the intent and the could, for example, concentrate on deportation suspects indefinitely without trial. Actual actions. Many of these new offences attacks on civilians’ is introduced, created under the Terrorism Act are there could be compatibility problems Possible use of evidence obtained through Article 3 ECHR; Article 15 UNCAT Danger remains that it will be used, despite being more removed from substantive act. with Article 10 [protecting freedom of torture in legal proceedings; provision of torture ruled illegal by House of Lords. Possible Not ideal in terms of investigations expression] and related Articles of the evidence to states which may use it as basis and not greatly welcomed by European Convention.14 for ill-treatment 12 practitioners.’ Use of UK airports for stopovers by CIA Article 3 ECHR; Article 7 ICCPR; Article 6 and 12 UK authorities have duty to act upon credible The table sets out areas of possible Surveillance when carrying out extraordinary rendition for UNCAT; Customary international law suspicion that this is taking place. Possible or actual conflict between UK laws A principal element of the interrogation by torture; use of UK airports and practice and international by planes suspected of having carried out government’s counter terrorism rendition previously. human rights standards, as assessed strategy has been the surveillance at the time by official national and of suspected individuals by the UK personnel being present at, or participating Geneva Conventions and specific UK policy on Personnel not properly trained in Geneva international organisations and in our intelligence and security services. in, interrogations of detainees in Afghanistan, interrogations Conventions and UK policy on them; unaware of judgment (and partially amended to Guantanmo Bay and Iraq interrogation techniques banned by UK in 1972; But this aspect of policy has to some unaware of 2003 ban on hooding of prisoners in make the analysis still relevant). This extent escaped debate because the transit. Actual Chapter then goes on to consider key rules governing state surveillance areas in more detail. New tests for deprivation of citizenship from Immigration, Asylum and Articles 3, 5, 8, 14 ECHR; Articles 12 and 26 ICCPR Home Secretary can, on basis of subjective criteria, and its oversight were put in place dual nationals or right of abode. Nationality Act 2006 strip individuals of right to live in UK, even if born in legislation prior to the present here. Actual The definition of terrorism emergency. Intelligence is the key Enforced out of country appeals for Immigration, Asylum and Article 1 Refugee Convention Uses very broad definition of ‘terrorist’; denial of All Britain’s counter terrorism laws to successful counter terrorism; it deportations on national security grounds Nationality Act 2006 basic principles of refugee law. Actual and practice are based legally on is ‘clean’, the authorities argue, the definition of terrorism set out in and good intelligence can prevent August 2005 list of ‘unacceptable behaviours’ to Article 10 ECHR Could impinge upon freedom of speech of dual be used in consideration of stripping of citizenship nationals and those with right of abode; may be the Terrorism Act 2000. This wide blunders. Given the inevitable time- from dual nationals and right of abode applied retrospectively. Actual definition includes serious violence lag in the ability of the intelligence against people or damage to property and security services to infiltrate and Criminalising of ‘encouragement’ of terrorism, TA 2006 Article 10 ECHR Too vaguely drawn, could impinge upon freedom of that is designed to influence the UK, develop human intelligence from a dissemination of terrorist publications, speech; Actual attendance at a place used for terrorist training other governments and international standing start, they are bound to rely bodies such as the United Nations, to heavily on surveillance. In particular, Proscription of organisations glorifying terrorism TA 2006 Articles 10 and 11 ECHR Too vaguely drawn, could impinge upon freedom of intimidate the public, or to advance entry into and interference with speech and association. Actual

44 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT property or equipment, intrusive and a degree of flexibility around the right flexibility in the right to privacy is non-intrusive surveillance, and the to privacy, in the use of such practices allowed for by the ECHR.) The table interception of communications by the as surveillance and interception, in on page 44 shows how interception agencies and other law enforcement order to preserve other basic human of communications, as provided for agencies is part and parcel of rights, including freedom of expression under the Regulation of Investigatory investigations into terrorist activities. and association, while ensuring the Powers Act 2000 (RIPA), has increased Sir David Omand has put to us the rights to life and human security are since 2001, partly in response to the idea that it may be necessary to accept protected against terrorism. (Some perceived threat of terrorism, but

UK counter terrorist policy and human rights compliance, 2005

UK Law or Action Authority Protected Human Right Actual or Possible Violation Definition of terrorism Terrorism Act 2000 (TA 2000) Articles 10 and 5, European Convention on Human Vague and catch-all character. Possible Rights (ECHR)

Power of arrest of suspected terrorist TA 2000 Article 5 ECHR The danger of arbitrary arrest is potentially reduced by the creation of the new offence of Acts Preparatory to Terrorism. Vague definition of terrorism renders it liable to abuse Pre-charge detention of up to 28 days Terrorism Act 2006 (TA 2006) Articles 3, 5 and 6 ECHR Enables police to detain without charge for excessive period of time; could amount to ill- treatment and denial of liberty and right to fair hearing. Possible Indefinite detention of foreign terrorist suspects Part Four of the Anti-Terrorism, Articles 3 and 5 ECHR; Article 4 of the International Enabled Home Secretary to detain suspects who without charge or trial Crime and Security Act 2001 Covenant on Civil and Political Rights (ICCPR). The could not be tried; discriminatory against foreign (ATCSA 2001, this part now UK has taken out derogations. Article 8 European nationals; disproportionate response to the threat; defunct) Convention for the Prevention of Torture and Inhuman ill-treatment of detainees. Actual or Degrading Treatment or Punishment. Ruled in violation of Articles 14 and 15 ECHR by Law Lords, 16 December 2004. Control orders, enabling restrictions of freedom Prevention of Terrorism Act 2005 Articles 3, 4, 5, 6, 8, 9, 10, 11 and Article 1 Entails severe restrictions on the liberty of suspects on individuals by Home Secretary, based on at (PTA 2005) Protocol 1 ECHR without the right to a fair hearing; overrides due least partially secret evidence process and separation of powers; amounts to ill- treatment; discriminatory against foreign nationals; denies freedom of speech and association; interferes with rights of family members. Actual Proposed deportation of terrorist suspects with Deportation power has statutory Article 3 ECHR; Article 3 UN Convention Against Runs risk of tacit compliance with torture and ill- diplomatic assurances against ill treatment expression in Immigration Act Torture and Other Cruel, Inhuman or Degrading treatment of individuals who cannot be prosecuted; from destination state 1971 Treatment or Punishment (UNCAT) guarantees produced by destination states cannot be relied upon; difficult to monitor compliance. Actual Detention or bail of terrorist suspects ‘pending’ Section 3 Immigration Act 1971 Article 5 ECHR Abuse of 1971 Act allows authorities to hold deportation suspects indefinitely without trial. Actual

Possible use of evidence obtained through Article 3 ECHR; Article 15 UNCAT Danger remains that it will be used, despite being torture in legal proceedings; provision of torture ruled illegal by House of Lords. Possible evidence to states which may use it as basis for ill-treatment Use of UK airports for stopovers by CIA Article 3 ECHR; Article 7 ICCPR; Article 6 and 12 UK authorities have duty to act upon credible when carrying out extraordinary rendition for UNCAT; Customary international law suspicion that this is taking place. Possible interrogation by torture; use of UK airports by planes suspected of having carried out rendition previously. UK personnel being present at, or participating Geneva Conventions and specific UK policy on Personnel not properly trained in Geneva in, interrogations of detainees in Afghanistan, interrogations Conventions and UK policy on them; unaware of Guantanmo Bay and Iraq interrogation techniques banned by UK in 1972; unaware of 2003 ban on hooding of prisoners in transit. Actual New tests for deprivation of citizenship from Immigration, Asylum and Articles 3, 5, 8, 14 ECHR; Articles 12 and 26 ICCPR Home Secretary can, on basis of subjective criteria, dual nationals or right of abode. Nationality Act 2006 strip individuals of right to live in UK, even if born here. Actual Enforced out of country appeals for Immigration, Asylum and Article 1 Refugee Convention Uses very broad definition of ‘terrorist’; denial of deportations on national security grounds Nationality Act 2006 basic principles of refugee law. Actual August 2005 list of ‘unacceptable behaviours’ to Article 10 ECHR Could impinge upon freedom of speech of dual be used in consideration of stripping of citizenship nationals and those with right of abode; may be from dual nationals and right of abode applied retrospectively. Actual Criminalising of ‘encouragement’ of terrorism, TA 2006 Article 10 ECHR Too vaguely drawn, could impinge upon freedom of dissemination of terrorist publications, speech; Actual attendance at a place used for terrorist training Proscription of organisations glorifying terrorism TA 2006 Articles 10 and 11 ECHR Too vaguely drawn, could impinge upon freedom of speech and association. Actual

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 45 partly as well to a likely loosening the House of Lords in December 2004 August the Court of Appeal confirmed across the board as the authorities as incompatible with the European the ruling. The Home Secretary is have been given greater latitude in Convention,16 and the proposal believed to have made the orders in criminal investigations. in 2005 to give the police powers question slightly less stringent, scaling It is fair to say that the powers to hold suspects for up to 90 days down the curfews in place from18 to provided generally under RIPA, while without charge, were at root attempts 14 hours. Previously, in February 2006, receiving much less public attention to introduce targeted preventive Lord Carlile, the official independent than those associated with the raft of detention. One of our interviewees reviewer of counter terrorism laws, counter terrorism legislation produced who was in the loop made it clear that published a list of obligations which since 2001, are and will continue to the real reason for many arrests under have been included in most of the be used far more extensively than existing powers and for holding people control orders issued so far (see any of the novel measures introduced for up to 90 days was not to give Appendix A) and described them by the government since then. the police more time to interrogate as ‘extremely restrictive’.19 The While increased surveillance may suspects and gather evidence, but JCHR – a cross-party committee of be necessary and preferable to other really to keep them out of mischief. parliamentarians, remember, not a forms of interference with human Following the judgment of the Law civil liberties organisation – published rights, it is necessary to subject it to Lords, the government introduced a damning verdict on control orders strict oversight. Yet the oversight of control orders in the Prevention of in the same month. The committee surveillance in the UK is one of the Terrorism Act 2005 to maintain the suggested that control orders might weakest in the democratic world. It detention of suspects. Control orders violate protected human rights is the Home Secretary who approves have been so restrictive that they under four Articles of the European interceptions and senior policemen have effectively deprived suspects, Convention: who approve access to ‘traffic data’ (for nationals or non-nationals alike, of ● stating that they can be ‘so instance, the duration of a call and the their liberty. They imposed curfews restrictive of liberty as to amount number it was made to), not judges of up to 18 hours on the detainees, to a deprivation of liberty for the in either case. There are episodes in restrict their associations with groups purposes of Article 5 (1) ECHR David Blunkett’s memoir that reveal and individuals, their movement and [the right to liberty and security]’, that warrants for telephone taps and access to goods and services, control and questioning whether the surveillance had reached 2,500 a their finances and affect the families power to impose non-derogating year by the end of his period at the of suspects as well. They come in two control orders would be exercised Home Office in 2004.15 (See Chapter types: those which require derogation compatibly with Article 5 ‘in the 6 further). The figures in the table are from the European Convention (as absence of a derogation from that clearly out of date; and while they yet unused) and those which in Article’.20 tell us how many communications theory have not. The Home Secretary interception warrants there are, they must apply to the courts to issue a ● expressing the belief that the do not tell us which agencies made derogating control order which lasts control orders regime amounted to use of them, or their purpose. No for six months. He may proceed a ‘de facto derogation from Articles figures are produced for surveillance unilaterally with a non-derogating 5 (4) [lawfulness of detention] and of traffic data; or for warrants for entry order which lasts a year, applying 6 (1) [the right to a fair and public on or interference with property or to the courts within seven days. trial] of the Convention.21 with wireless telegraphy (‘property Hearings may be in open or closed warrants’), or other authorisations of court. In closed sessions ‘security- ● registering concern that ‘the activities. We do not even know for sensitive’ information is considered combination of the degree of sure exactly how far surveillance of and the suspect is represented by restriction imposed by control traffic data extends; Gus Hosein, of a Special Advocate (as in hearings orders, their indefinite duration, Privacy International, says: ‘It’s not by the Special Immigration Appeals and the limited opportunity to quite trawling yet, but it does permit Commission, SIAC). By the end of challenge the basis on which they fishing expeditions.’ 2005 18 control orders had been are made, carries a very high risk issued – 11 of which were against of subjecting those who are placed Control orders and preventive foreign suspects previously held in under control orders to inhuman detention indefinite detention. On 2 September and degrading treatment contrary 2005 the first control order was It has become clear to us in our to Article 3 ECHR’ [the prohibition researches that the authorities would applied to a British citizen. As of of torture or inhuman or degrading like to introduce a more targeted September 2006, 15 control orders treatment or punishment].22 form of preventive detention than existed (including, it is understood, the internment without trial that was some orders issued as a contingency The committee also found that discredited by its use in Northern but not yet enforced).Control orders control orders interfered with the Ireland (though there are those raise not only general points of human rights of members of the who still argue for internment). The constitutional principle concerning suspect’s family, including their authorities have tried repeatedly the rule of law and the separation right to respect for private, family life since 9/11 to find ways to restrict of powers, but also a number of and home; their right to freedom of the freedom of individuals whom specific human rights concerns.17 expression and to receive information; they believe to be security risks but In the High Court on 28 June 2006, their right to freedom of association. who cannot be prosecuted or more Mr Justice Sullivan quashed control In the committee’s view, they were usually deported, in the case of orders on six detainees, ruling that being caused ‘Mental suffering foreign nationals. Both the short-lived the ‘draconian’ restrictions on their and anguish due to the fear of their indefinite detention without trial of liberties fell just short of house arrest. home being searched, the controlled foreign terrorist suspects, introduced They had been deprived of their person rearrested, or their own social by the Anti-terrorism, Crime and liberty in contravention of Article 5 interactions monitored’.23 The JCHR Security Act 2001 and condemned by of the European Convention.18 On 1 argued further that the standard of

46 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT proof for control orders should be innocence, the review proceedings Immigration Act 1971.31 The JCHR raised: in the case of non-derogating described can only be considered to has noted, orders, from ‘reasonable suspicion’ be fair, independent, and impartial Given the very clear case-law to ‘the balance of probabilities’ (the with some difficulty.27 establishing that detention standard for civil cases in England and Finally, since 17 of the 18 control pending deportation can only Wales); for derogating orders, from ‘the orders issued were against non- be justified under Article 5(1)(f) balance of probabilities’ to ‘beyond nationals, the JCHR raised the of the Convention if there is a reasonable doubt’.24 question ‘of possible discrimination realistic prospect of deportation Under the 2005 Act, the Home in the application of the control within a reasonable time, we doubt Secretary may make non-derogating orders regime’ – potentially a whether use of Immigration Act bail control orders without first applying breach of Article 14 [requiring non- conditions amounting to full house to the courts. Both Alvaro Gil-Robles discrimination] of the European arrest, which undoubtedly amounts and the JCHR have argued that such Convention, in conjunction with to a deprivation of liberty, in cases orders should be made by a court, not Articles 5, 6, 8, 9, 10, 11 and Article 1 where memoranda of understanding the executive. The JCHR said that of Protocol 1, protecting the rights to with the receiving country have yet ‘our own constitutional traditions of liberty and security of the person, to to be concluded, can be lawful in due process, and of the separation of a fair and public hearing, and to the the absence of a derogation from powers between the executive and peaceful enjoyment of possessions, Article 5’.32 25 the judiciary’ were involved. The respect for private and family life, committee were concerned about the The 1971 Act has also been used to and freedoms of thought, conscience, detain those found not guilty in the so- use of secret evidence and special religion, expression and association.28 advocates – ‘a procedure in which a called ‘ricin trial’ (some of whom have subsequently been bailed on control person can be deprived of their liberty Control orders and the use of order-style conditions of ‘partial without having opportunity to rebut immigration powers the basis of the allegations against house arrest’). This course in effect them’ – and stated that these processes Nine of the 18 control orders issued represents what the Campaign Against were not in 2005 were still in force by the end Criminalising Communities said of the year (including one against a was ‘a parallel or alternative route to compatible with the right to a fair trial UK national). The nine who had their punishment without trial’ in evidence in Article 6 (1), the equality of arms control orders revoked – all former to the JCHR. Alvaro Gil-Robles levels inherent in that guarantee, the foreign detainees held indefinitely the same accusation against the right of access to a court to contest under the Anti-Terrorism, Crime and use of control orders: ‘Substituting the lawfulness of their detention Security Act – were detained under “obligation” for “penalty” and in Article 5 (4), the presumption of Section 3 of the Immigration Act “controlled person” for “suspect” only innocence in Article 6 (2), the right 1971 and served on 11 August 2005 thinly disguises the fact that control to examine witnesses in Article 6 with notice of intention to deport. orders are intended to substitute the (3), or the most basic principles The government may only detain ordinary criminal justice system with a of a fair hearing and due process individuals under the Act ‘pending parallel system run by the executive’.33 long recognised as fundamental by deportation’. The government argues More broadly, Amnesty International English law.26 that deportation is pending since it is believes that the government has since Alvaro Gil-Robles pointed out that seeking memoranda of understanding 9/11 created a with foreign governments not to non-derogating orders were ‘initially shadow criminal justice system execute, torture or subject the foreign made by the executive rather than, involving ‘punishment, whether suspects to inhuman or degrading as Article 6 ECHR would properly it be by deprivation of liberty or treatment if they are returned to their require, the judiciary’ and commented, deportation of people against whom own country.29 Memoranda have there is insufficient evidence to it does not seem to me that the been agreed with Jordan, Libya and support a criminal charge. Such a weak control offered by judicial Lebanon. Negotiations are underway course of action brings the law and review proceedings satisfies to conclude them with Algeria, those charged with its enforcement the requirement of the judicial Morocco and Egypt. The value of an into disrepute; it is neither fair, nor determination of what could be agreement with a nation that already just, nor lawful – and soon results in considered, in effect, as criminal tortures prisoners and so violates the loss of public confidence.34 charges. Added to this, the existing international agreements is proceedings fall some way short of doubtful. guaranteeing the equality of arms, Four of the nine former suspects Arrests and pre-trial detention in so far as they include in-camera being held for deportation have been Under section 41 of the 2000 Act, hearings, the use of secret evidence granted bail. The bail conditions, the police may arrest someone on and special advocates unable according to Lord Carlile, are ‘similar reasonable suspicion that they are a subsequently to discuss proceedings to rigorous non-derogating control terrorist; but the definition of terrorism with the suspect of the order. The order obligations’.30 The Campaign and related offences as contained proceedings, indeed, are inherently Against Criminalising Communities, a in the Act is so broad as to make the one-sided, with the judge obliged conglomerate of lawyers, activists and power of arrest potentially very wide to consider the reasonableness of community groups, states that the bail in its application. In his 1996 report on suspicions based, at least in part, conditions for at least one man amount counter terrorism law, Lord Lloyd of on secret evidence, the veracity to ‘full house arrest’. If this were Berwick, the former law lord, found the or relevance of which he has no so, a derogation from the European power of arrest – which existed in the possibility of confirming in the Convention would be required if Prevention of Terrorism Act – useful as light of the suspect’s response to there was no reasonable prospect of a means of pre-empting terrorist acts, them. Quite apart from the obvious deportation; none has been sought for but was concerned it could contravene flouting of the presumption of the exercise of this power under the the fundamental legal principle

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 47 that arrests should be based on the Home Secretary for not challenging people who have been arrested and commission, imminent or actual, of the police case well enough to assure held in 28-day detention complain specific crimes. He saw a potential themselves that it was justified.36 that the police are not questioning conflict with Article 5 of the European However, the committee also found, them or proposing charges for long Convention on the right to liberty and after studying some 17 cases in depth periods – some suspects have been security. Accordingly Lord Lloyd – and in private session – some which have held, it is said, for nine days before Lord Carlile after him – recommended yet to come to court, some which were they have been questioned. This calls that lower level acts ‘preparatory to currently in court – that an extension into question the quality of the judicial terrorism’ should become criminal beyond the existing 14 days was supervision of extensions beyond 14 offences.35 The Terrorism Act 2006 justified in view of the cumulative days as in the cases of the alleged introduced this new crime which is effect of computer decryption and airliner plotters who were not, we are now in use – for example, in charges other forensic investigations, but informed, interviewed at all for some against those accused of plotting to not as yet a maximum detention time following their arrest. blow up transatlantic airliners. Thus period of more than 28 days. A ‘shadow’ system of criminal arrests are brought into the criminal However, the committee felt that 28 justice, driven by the executive, is justice system, but the offence is so days may prove inadequate in the beginning to emerge and the pressures widely drafted that it creates dangers future. The committee recognised for extending it are growing. It is of abuse; and the length of time that the ‘preventative element’ of some essential for the health of justice in it is taking to bring charged suspects arrests under terrorism laws and the UK to seek every opportunity to to court makes for a de facto form of recommended that it should ‘be given prosecute terrorist suspects within preventive detention. clearer and more explicit recognition’ the existing criminal justice system A suspect arrested under the 2000 by the government, having put it with its protections for liberty and Act may be detained for up to 28 days to Assistant Commissioner Andy fair trial rather than devising means before being charged. The period of Hayman that the main case for to hold them. One of the reasons pre-charge detention has been raised extending the maximum detention given for seeking longer pre-charge from seven days in 2000, which the period was to disrupt or prevent detention for suspects and exceptional police felt was adequate, to 14 days in terrorist activity, rather than to gather measures like control orders is that 2003, again apparently an adequate evidence. He agreed that ‘There are intercept evidence is not admissible period for police purposes, and then to a vast amount of cases now where in court. This ban is thus a factor in 28 days from 14 by the Terrorism Act an early interdiction is to disrupt on the growth of the shadow system of 2005. It is interesting that the police the grounds of public safety’. The criminal justice. We discussed the case for each period of detention, from committee concluded that preventive case for repeal of the ban under the seven days in 2000 to their pressure detention was a significant new Regulation of Investigatory Powers Act for up to 90 days in 2005, scarcely development that should not be left to 2000 on the use of domestic intercept varied. It is hard to understand fully the police alone, and recommended information as evidence in open court just why the period of detention itself judicial oversight of preventive in our scoping report. The UK is the rose so dramatically, unless it is largely arrests and detention and ‘continual only country other than Ireland to regarded as a form of preventive reassessment’ of whether alternatives, have such an absolute prohibition in detention. As it is, the government and such as control orders and tagging, place; other nations, including France, police failed to persuade Parliament might not be more appropriate. Germany and the US, make intercept to extend the period of pre-charge By contrast, the Joint Committee evidence admissible on a regular detention to 90 days, losing the crucial on Human Rights has noted basis. It would be valuable in major vote in the House of Commons. The that ‘Preventive detention is not criminal cases as well as in terrorist official evidence produced to justify permissible under Article 5 [the right trials. Intercept material from Austria, the 90-day period was unconvincing; to liberty and security of person] Belgium and Italy played a vital role in and while the police wanted it, we are of the European Convention and securing the conviction of the ring of reliably informed that the intelligence warned that it could not be introduced Turkish people-traffickers in October, services did not. Lord Lloyd warned ‘without a derogation’ – which would for example, but it was only admissible that the proposal ‘bordered’ on require the government to claim that as evidence in court because it was internment. The official evidence did the ‘life of the nation’ was in peril. obtained lawfully by the foreign law not in our view even justify 28 days Prolonged detention is a harrowing enforcement agencies. of pre-charge detention, which was experience with intense psychological There is widespread informed more a political compromise than a pressures on those who are held. support for allowing it to be introduced considered decision. From 20 January The power to hold suspects even for in court; and the security services 2004 (when pre-charge detention rose the current 28 days may already fall could always withhold information from seven to 14 days) to 4 September foul of Article 3 [the prohibition on that would damage their operations. 2005, only 11 terrorist suspects were torture and inhuman or degrading Among other organisations, JUSTICE held for as long as 13-14 days, and treatment or punishment] and Article has argued ‘lifting the ban on the they were all charged with offences, 5 of the European Convention in use of intercept evidence in criminal suggesting that the police had enough the view of the Joint Committee on proceedings . . . would allow for an time. Human Rights. The JCHR argues increase in the number of prosecutions The Home Affairs Committee, in its that the case for extensions beyond 14 that could be brought for terrorist report on pre-charge detention in July days is unproven; that when such an offences’.38 It seems difficult to 2006, was highly critical of the police extension takes place, there should conceive of a compelling reason for the and government case for the 90 days, be a full adversarial hearing before a government to maintain the current stating that the police case on such judge, with the detainee present and self-imposed ban while at the same a major issue with very significant relevant material made available; time seeking to justify a departure human rights implications should have and that there should be a clear from the ordinary principles of the been ‘better developed’ and criticising presumption in favour of liberty, not criminal law. The Attorney General the Prime Minister and the then detention.37 Moreover, lawyers for did signal in September that the

48 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT ban should be lifted. We are reliably agreement of the defendant; and is a blunt and haphazard instrument, informed that he and the Prime the drawing of adverse inferences one moreover which is used Minister are ‘raring to go’ with lifting from a refusal to answer questions at disproportionately against individuals the ban, and that the only obstacle interviews. from minority communities. is said to be making it workable. However, it seems most likely that Stops and searches are not recorded However, it is hard to believe that the government is going to rely even by religion, but there are figures on it beyond the wit of government to more heavily on preventive detention. race which indicate that the police devise a way of lifting the ban and also Ministers have been discussing and public officials may be guilty of protecting vital security information; going beyond the current 28 days ‘ethnic profiling’ – that is, using racial, the JCHR has argued that the use of and resurrecting the demand for ethnic or religious stereotypes to make public interest immunity and special 90-day detention. In his Chatham law enforcement decisions to stop and advocates should be sufficient to House speech on 10 October 2006, the search, check papers and so on. Home ensure the concerns of the intelligence Chancellor said that the security forces Office statistics show that during and security agencies about using could no longer afford to risk waiting 2004-05 black people were 2.5 times sensitive material in prosecutions are to catch terrorists ‘red handed in the more likely than whites to be stopped met. And others closely involved in act of criminality’ when they could and searched under the Terrorism Act monitoring counter terrorism policy take ‘the lives of thousands in one act’. 2000, Asian people were 2.2 times told us that the government was This was why preventive measures are more likely, and ‘Others’ 3.8 times making no real effort to remove this or necessary. He did offer the consolation more likely.44 The police explain that any other obstacle to prosecutions. that the independent reviewer could these figures are consistent with the Making intercept information investigate every case where someone proportions of Asians and others in the admissible in court would make it was detained for more than 28 days, local areas and that the use of national possible to prosecute more alleged with an annual report to Parliament. ethnicity figures is misleading. terrorists. In his 1996 report on But far stronger measures of judicial In one year, 2002-03, section 44 counter terrorism laws, Lord Lloyd oversight will be necessary in such stops of those considered ‘Asians’ rose found at least 20 cases in which an eventuality, as the Home Affairs by 302 per cent.45 The Open Society the use of intercept evidence would Committee has argued.39 Justice Initiative comments that out have made it possible to mount a of the 21,577 section 44 stops and prosecution (though obviously under Ethnic profiling: stop and search searches in that year, none have to different circumstances). The Newton powers date resulted in a conviction for a committee, Lord Carlile, and the JCHR The police can stop and search anyone terrorism offence: ‘The UK does have have over the last few years proposed whom they ‘reasonably suspect’ of more than 60 defendants currently various other options to facilitate being a terrorist to look for evidence.40. awaiting trial on terrorism offences. more criminal prosecutions and avoid Under section 44 of the Terrorism Act To our knowledge, not one of those executive detention. Other approaches 2000 the police also have powers to resulted from a section 44 stop. Rather proposed include using terrorism as designate areas in which anyone may these were largely the results of an aggravating factor in sentencing; be stopped and searched without a intelligence based investigation over earlier involvement in terrorist need for reasonable suspicion.41 These extended periods.’ Open Society adds cases by the Crown Prosecution powers are in frequent but uneven that the majority of arrests resulting Service (which has to some extent use, and are often used very heavily in from section 44 stops appear to result been taking place since 2004); an some areas. Until 2004, the police had in immigration proceedings and emphasis when investigating terrorism constant section 44 powers across the deportations.46 The police argue that upon converting information into whole of London by way of rolling 28- the rates of arrests are irrelevant: the evidence; an equivalent to the French day authorisations – a clear violation point of stops and searches is to act as offence ‘association of wrongdoers’; of the spirit of the legislation. Stop and a disruptive deterrent. more proactive case management search powers are now being used The figures for stops and searches by judges; and more incentives for more intensively since 7 July 2005 under all legislation (stops and giving evidence. Meanwhile, the but they are of little use in catching searches are recorded by race, but introduction of the ‘threshold test’ by terrorists. Under previous legislation not religion) show that black people Crown Prosecutors when deciding the use of powers equivalent to those (which does not include Asians) are whether to charge an individual with a provided for by section 44 had fallen the group most discriminated against, criminal offence removes one obstacle. to 1,900 in 1996-97. In 2004-05, the but under the 2000 Act powers, the Instead of the general belief that CPS police stopped and searched 35,800 extent of discrimination against Asians requires a greater than 50 per cent pedestrians, vehicles and occupants and ‘Others’ increases, while the chance of a successful prosecution, under section 44 and arrested only 455 extent of discrimination against blacks it can now apply a ‘reasonable people (just over 1 per cent of those decreases.47 The obvious conclusion suspicion’ test instead – though stopped). Few of these arrests were is that people who appear as though one based on evidence, rather than for offences connected with terrorism. they might be Muslims are more likely intelligence, as can be the case simply By contrast, over the same period, the to be stopped and searched. Indeed, for arresting a suspect. The JCHR arrest rate for the 851,200 stops and the proportion of Asians stopped in argues that the ‘threshold test’ is used searches under all police powers was the aftermath of the July bombings in the majority of terrorist cases and 11 per cent.42 and the failed plot rose to half of all thus undermines arguments for an The Association of Chief Police stops and searches; the police state extension of pre-charge detention Officers (ACPO) has described the however that these interventions beyond the current maximum of 28 value of stop and search as being were specifically driven by circulated days. The JCHR argues as well for to ‘disrupt and deter’ terrorist descriptions. In the YouGov poll of changes in Home Office regulations ‘reconnaissance of potential targets’.43 Muslims in Britain in July 2005, 5 per to permit post-charge questioning In other words, this is not intelligence- cent of respondents said that they had of terrorist suspects without either led action to capture perpetrators of personally been stopped by a police new evidence coming to light or the actual or intended attacks – rather it officer or public official ‘while going

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 49 about [their] everyday business’, and enforcement officials within their without charge. 12 per cent reported that a family countries and by border control As is well-known, Sir Ian Blair, the member or friend had been stopped.48 personnel’.53 But does the use of stop Metropolitan Police Commissioner, (These are of course subjective and search powers breach Article tried to prevent the Independent Police accounts.) It is not just the police 14 of the European Convention on Complaints Commission (IPCC) from who stop and search people who they Human Rights? The discrimination, investigating the shooting and barred think may be terrorists. The 2000 Act or ‘difference in treatment’, shown to the IPCC staff from the scene of the also requires officials to maintain blacks, Asians and ‘Others’ in their Menezes’s killing. He requested that port and border controls and they use is self-evident. But ECHR case law the Home Office draw up ‘rules of are not required to have ‘reasonable also asks, does it have a ‘legitimate engagement’, similar to those provided suspicion’ in order to examine aim’? And is there a reasonable for the military in a war and had passengers, goods, vehicles or crew. degree of proportionality between discussed with the Prime Minister Lord Carlile has found the use of this aim and ‘the means employed’? ‘maximising the legal protection for intuitive stops – that is those not based Combating terrorism is plainly a officers who had to take decisions on reasonable suspicion or specific legitimate aim, but can the use of in relation to people believed to be intelligence – while having ‘potential powers that contributes a great deal suicide bombers’. The IPCC inquiries for catching a terrorist at work’ – had to stigmatising members of ethnic began a few days late. At Forest Gate, a low ‘strike rate’. The number of minorities and harming community the IPCC investigators had immediate such stops, he concluded, ‘could be relations while contributing little to access to the house. reduced significantly’.49 Routine stops combating terrorism be described as There is no provision in and searches do not normally arouse proportionate? international law for ‘shoot to kill’ controversy, though they plainly cause The police authorities state that policies. Amnesty International has resentment against the police and they do not condone ethnic profiling stated that ‘all law enforcement inhibit trust in their good faith. But and issue guidance to steer officers agencies should be guided at all some section 44 stops and searches away from such practices. But senior times by the principles of necessity have aroused controversy. Their use officers also acknowledge that the and proportionality when using against protestors at an east London practice, however infrequent, has force. Every effort must be made to arms fair under the rolling 28-day a symbolic effect that heightens apprehend rather than kill’.55 In the authorisations has been tested in and personifies general feelings UK, section 3 of the Criminal Law the courts; and in March 2006, the of persecution and victimisation Act 1967 states that ‘a person may Law Lords upheld the importance of among the Muslim communities. It use such force as is reasonable in the police officers being able to use their is, members of those communities circumstances in the prevention of ‘intuition’ and ruled that their use have told us, part of the ‘pain’ they crime, or in the effecting or assisting breached neither domestic law nor experience ‘on the street’. It is plainly in the lawful arrest of offenders or the European Convention (while, as very difficult to avoid ethnic profiling, suspected offenders or of persons one judge said, ‘The mere fact that no matter what guidance is issued, unlawfully at large’. Police officers a person appeared to be of Asian and we urge the police to weigh in the may use force ‘only when strictly origin was not a legitimate reason balance the possible deterrent effect necessary and to the extent required for exercise of the power to stop and of the practice against the negative for the performance of their duty’.56 search)’.50 There was also controversy impact that it has on their relations They also have a right of self-defence. about their extensive use in Brighton with the Muslim communities. The authorities and courts have always during the Labour Party conference given the police a wide margin of there in 2005. Lord Carlile has stated The use of lethal force discretion in the use of fire-arms, that section 44 ‘involves a substantial On 22 July 2005, the day after the recognising the difficult circumstances encroachment into the reasonable failed bomb attempts in London, police in which some such incidents occur. expectation of the public at large that shot dead Jean Charles de Menezes, a British governments have always they will only face police intervention 27-year-old Brazilian electrician, in the denied that a ‘shoot-to-kill policy (i.e., in their lives (even when protestors) belief that he was a potential terrorist. deliberately shooting suspects dead if there is a reasonable suspicion that He was shot under a new ‘shoot-to- as an alternative to arresting them) they will commit a crime’. While the kill’ policy, drawn up by the ACPO, to was in force in Northern Ireland in powers were ‘necessary for a small deal with suicide bombers who might the 1980s, but human rights bodies, range of circumstances’, their use blow up themselves and ordinary in particular Amnesty International, could be cut at least by half.51 citizens nearby at the point of arrest and academics have rejected these Britain is the only EU member if not immediately incapacitated. This denials. John Stalker, the senior police state that has expressly banned shift in policy was apparently agreed officer, who was removed from the racial discrimination by law without reference to ministers or the official inquiry into possible ‘cover- enforcement officers.52 The Council Home Office. Professor Haleh Afshar, ups’ in suspicious circumstances, of Europe’s Commission Against the Muslim scholar, has written that was convinced that there was a ‘clear Racism and Intolerance (ECRI) Muslims in Britain ‘realised that there understanding’ of what was expected has, like the UN Committee on the was now a “shoot to kill” policy that of those ‘whose job it was to pull the Elimination of Racial Discrimination, could threaten their lives.’54 Such fears trigger’. The inquiry report, completed stated clearly that ethnic profiling will have intensified since the shooting by a chief constable, was never violates the prohibition against by armed police of Mohammed Abdul published, but the government said discrimination. ECRI’s General Policy Kahar, aged 23, in the major police that it found no evidence of a ‘shoot- Recommendation No. 8 on combating raid of his family home in Forest Gate, to-kill’ policy when it was presented to terrorism specifically recommends east London, on 2 June 2006. The Parliament.57 The Independent Police that European governments should police ‘stormed in like burglars’, their Complaints Commission report into ensure that their laws and practice sister told BBC News. Kahar and his the killing of Jean Charles de Menezes do not lead to discrimination, brother, Abel Koyar, were taken into that cleared the security forces’ actions including ‘checks carried out by law custody for questioning and released in shooting the young Brazilian dead,

50 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT has also not been published. The ATCSA 2001 causes particular control orders (and detention or bail IPPC’s findings may yet be legally alarm. The European Committee conditions under the Immigration challenged. for the Prevention of Torture and Act 1971) continues to raise concerns The Menezes tragedy has special Inhuman or Degrading Treatment about inhuman or degrading resonance in the Muslim communities, or Punishment (CPT) organised a treatment. Further, the government but also raises long-standing special visit to the UK from 14-19 has refused to rule out relying concerns about the unwillingness March 2004 to investigate concerns on evidence suspected of being of the authorities to investigate and drew immediate attention to the obtained through torture in hearings fatal incidents involving the police state of three detainees who should to determine whether a suspect is and security forces; the already be transferred to more appropriate involved in terrorist-related activity low accountability of the police for facilities. One man – who had been and therefore requires a control order. fatal shootings; the withholding of transferred from Belmarsh Prison The sole caveat is that British agents information when there is an inquiry; to Broadmoor Special Hospital were not involved in its extraction. and the reluctance to bring the – was suffering from ‘a most severe Such evidence can also be used in legal standard for the use of lethal post-traumatic stress disorder’. In hearings by SIAC, the body to which force up to prevailing international Broadmoor he had ‘endured frequent those served with deportation notices standards.58. The police put the episodes of verbal abuse by members on security grounds appeal. But as authorities under intense pressure of staff…as well as assaults from Alvaro Gil-Robles points out, the not to investigate such cases and no other patients…His mental state prohibition of torture under Article 3 police officer has been convicted in also appeared to have deteriorated ECHR is ‘absolute…torture is torture connection with any of the 31fatal seriously, risking permanent whoever does it, judicial proceedings shootings of civilians that have damage’.61 The second man, in are judicial proceedings, whatever occurred over the past 12 years. Belmarsh, suffered from major physical their purpose – the former can disabilities, depression, weight loss never be admissible in the latter.’69 Torture and inhuman degrading and further loss of function. His ‘state Furthermore, under UNCAT’s Article and cruel treatment or of health was likely to deteriorate 15, statements ‘established to have punishment further’.62 A third man in Belmarsh been made as a result of torture shall The prohibition on torture and – both of whose forearms were not be invoked as evidence in any inhuman or degrading treatment amputated – was unable to urinate or proceedings’, except against someone or punishment is at the heart of defecate unaided, but ‘did not always accused of torture. human rights protection. It is both receive the necessary assistance’. In December 2005 the House of a fundamental principle of our His mental state had deteriorated Lords overturned an earlier decision domestic law and a key provision in seriously, ‘leading to both severe by the Court of Appeal that evidence the principal human rights treaties depression and post-traumatic stress obtained through foreign torture not which bind the UK, including the disorder’.63 In general the CPT involving the UK authorities was European Convention and the UN called for staff at Belmarsh to ‘be admissible. However the Law Lords International Covenant on Civil and reminded that ill-treatment of any divided on the test to be applied to Political Rights. These guarantees form, including threats, abusive or determine whether evidence should are built upon by the United Nations aggressive language and mockery, be excluded. The majority argued that Convention Against Torture and will not be tolerated and will be it was the responsibility of detainees Other Cruel, Inhuman or Degrading the subject of severe sanctions’;64 to raise the issue of torture evidence Treatment or Punishment (UNCAT).59 and it urged the UK authorities to with SIAC. It was then the duty of The UK government, through its own ensure its anti-bullying strategy SIAC to investigate if there were counter terrorism policies and failure was applied in Belmarsh to protect reasonable grounds for suspicion and to apply sufficiently rigorous standards detainees from racist behaviour by to determine whether, on the balance in its dealings with other nations, is other prisoners.65 The CPT found both of probabilities, the evidence was failing to comply with international physical impairment and psychiatric obtained by torture. Lord Bingham, in standards on torture and inhuman or disturbances amongst detainees and the minority, argued that were SIAC degrading treatment or punishment. In called upon the authorities to provide ‘unable to conclude that there is not its concluding observations published appropriate care facilities, which a real risk that the evidence has been in December 2004, the UN Committee were lacking.66 After further visits obtained by torture, it should refuse Against Torture raised concerns about in 2005 the European Committee to admit the evidence’.70 However, the following issues relevant to counter expressed its concern that, with there is an obvious risk that lack of terrorism policy: the admissibility in pre-charge detention of up to 28 information about the provenance UK courts of evidence obtained by days being introduced, ‘the present of evidence will lead to evidence torture abroad without the involvement conditions at Paddington Green obtained by torture being admitted of UK officials (Article 15 UNCAT); High Security Police Station are not before SIAC; the JCHR has called for the denial of UN safeguards on adequate for such prolonged periods the intelligence and other agencies to torture in the British jurisdiction and of detention’.67 Studying conditions at supply SIAC with the fullest possible operations in Iraq and Afghanistan; Long Lartin and Full Sutton prisons, information about the circumstances in indefinite detention under the Anti- where terrorist suspects detained which evidence was obtained.71 Aside terrorism, Crime and Security Act 2001 ‘pending’ deportation under the 1971 from the question of its possible use as (ATCSA); and the proposed reliance Immigration Act were being held, it evidence in proceedings, information on diplomatic assurances from regimes noted ‘neither prison was prepared obtained by torture undoubtedly that practice torture that they will not to receive the detainees and ad hoc is used as a basis for action by UK torture or ill-treat returned asylum measures were taken to accommodate security forces.72 seekers, combined with a likely lack them’.68 The CPT made a series of The JCHR accepts that ‘UNCAT of safeguards and monitoring of such detailed recommendations designed to and other provisions of human asylum seekers once returned.60 improve conditions. rights law do not prohibit the use of The treatment of detainees under As we have shown, the impact of information from foreign intelligence

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 51 sources, which may have been Human Rights judgment in the case International Covenant on Civil and obtained under torture, to avert of Chahal v the UK in 1997 that a Political Rights not to return anyone to imminent loss of life’. Indeed the UK person cannot be deported to a country a country where there are substantial authorities may be required under where they face a real risk of torture risks that they may be tortured and Article 2 of the European Convention or inhuman and degrading treatment, has a positive obligation to prevent (which protects the right to life) to act regardless of public emergency or and investigate acts of torture under upon warnings. But ‘great care must terrorist threat. For the ECHR, the both the ECHR and UNCAT as well be taken to ensure that use of such prohibition against torture is absolute. as customary international law.80 This information is only made in cases of The government has been a vociferous obligation clearly applies where an imminent threat to life’. It is essential critic of this judgment and now, individual is rendered through the UK to avoid lending tacit support to along with Lithuania, Portugal and by foreign agents.81 The government violations of international standards Slovakia, is currently intervening in is also duty bound under UNCAT to and the committee complained that in another case before the Court (Ramzy investigate potential cases of torture effect Britain’s intelligence agencies v The Netherlands) about the Dutch within its jurisdiction, to secure did just that, adopting an ‘essentially authorities’ efforts to deport a suspect persons alleged to have committed passive stance towards the methods to Algeria. The government is seeking torture and to conduct inquiries with and techniques of foreign intelligence to persuade the Court to revise its a view to prosecution or extradition. agencies.’ It recommended they majority judgment in Chahal and Given that the ‘rendition’ flights establish framework agreements for adopt the minority finding that a state amount to torture in themselves, intelligence sharing that set minimum should be able to balance the threat to credible allegations that an aircraft standards to be observed and then national security that someone poses present in the UK is transporting monitor for compliance with them. against the potential risk of torture suspects to torture, or has been Some ‘independent scrutiny of those or ill treatment at their destination.76 used for rendition in the past, place arrangements’ would be desirable.73 In other words, the government is the British authorities under a duty The UN Committee against seeking a trade off that may lead in to detain the aircraft, arrest any Torture is not the only official critic some circumstances to the absolute suspects on board, and carry out an of the government’s determination prohibition on torture being overruled investigation.82 to conclude memoranda of by national security considerations. The Council of Europe is pursuing understanding for the return of As it stands now, any such deportation its inquiries into extraordinary foreign suspects to countries that would be a violation of both the rendition and wants to initiate laws practise torture. Alvaro Gil Robles European Convention and UNCAT.77 to control European security services cautions, ‘There is clearly a certain In a disappointing judgment in August and impose safeguards on the use inherent weakness in the practice 2006, SIAC ruled that an Algerian man of civil and military aircraft. Franco of requesting diplomatic assurances known as ‘Y’ – one of those acquitted Frattini, the EU Justice Commissioner, from countries in which there is a in the ricin case, already a victim of admitted for the first time on 27 June widely acknowledged risk of torture.’ torture – would not face the risk of 2006 that European territory had He called for any such assurances ill-treatment if returned to Algeria. been used for rendition. The British to be unequivocal with ‘an effective Amnesty International described the government’s position is to stay shtum. monitoring mechanism…established.’ judgment as ‘an affront to justice and British intelligence officers had by It was ‘vital that the deportation of wrong’. March 2005 conducted or witnessed foreigners on the basis of diplomatic more than 2,000 interviews of assurances are subject to judicial Extraordinary rendition detainees in Afghanistan, Iraq and scrutiny capable of taking all Britain also stands accused by the Guantanamo Bay. A report by the these elements, the content of the Council of Europe as being one of Intelligence and Security Committee assurances, and the likelihood of their seven member states who can be held on their involvement acknowledged being respected into account.’74 The directly responsible for violations difficulties in balancing the duty JCHR has expressed ‘grave concerns of the rights of specific individuals of the intelligence community ‘to that the Government’s policy of through its participation in the obtain intelligence …and the need reliance on diplomatic assurances ‘extraordinary rendition’ by the United to abide by the UK’s interpretation could place deported individuals at States of prisoners to destinations of international Conventions’ real risk of torture or inhuman and where they will be interrogated under – difficulties that were ‘further degrading treatment, without any torture. After years of suspicions, the complicated’ because the US and UK reliable means of redress.’ If deported Council’s Parliamentary Assembly interpretations differed.83 The report suspects were executed, tortured or rapporteur, Dick Marty, a Swiss revealed that the intelligence staff ill-treated, Britain would in breach senator, published a report in June had interviewed detainees captured of Articles 2 or 3 of the European 2006 revealing what he called a by the US without first consulting Convention and UNCAT’s Article 3.75 reprehensible ‘spider’s web’ of Secretaries of State. Furthermore What vexes the government most unlawful CIA detentions and transfers intelligence officials deployed to about the effects of its Human Rights aided by the collusion, intentional or Afghanistan, Iraq and Guantanamo Act is that the rights that it ‘brings through gross neglect, of European were not sufficiently trained in the home’ apply universally to people in governments.78 It is alleged that Geneva Conventions and were the UK. The Act obliges the courts British intelligence officials conspired unaware of interrogation techniques here not only to protect the rights of in CIA kidnappings of suspects and the UK had banned as long ago as UK and EU citizens, but also to respect participated in the interrogations 1972. (In Iraq, they and their military the rights of foreigners resident in of detainees in Morocco, Pakistan protection teams were not ‘informed the UK, a few of whom they believe and Guantanamo Bay, and that CIA when the hooding of detainees during are committed terrorists but do not aircraft have rendered people to transit was prohibited in 2003’.) The have sufficient admissible evidence torture through British airports.79 report also enumerated deficiencies to prosecute them. The judiciary Britain is obliged under UNCAT, the in the reporting of ‘serious potential has adopted the European Court of European Convention and the UN abuse by the US military’, both

52 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT to the US authorities and British Or could you be arrested simply for parameters of glorifying terrorism ministers,84 and revealed lapses in wearing the ‘wrong’ T-shirt or carrying to legitimate and peaceful protests, the Prime Minister’s account to them a radical pamphlet? for example, against the Iraq war or of reporting processes a year earlier. Initially it seemed that the law heckling the Foreign Secretary at a The report was especially critical of was extended in particular to ban party conference. Perhaps the most the lack of follow-up of reports of Hizb-ut-Tahira, the radical but telling, and absurd, of examples of abuse by the UK authorities.85 What non-violent Muslim group that the heavy-handed suppression was the the committee found in effect was Prime Minister has targeted. Yet no charging in June 2006 of Steven Jago, that UK ministers and the intelligence such ban has been introduced or a management consultant, under the community had failed to develop a seems likely to be enacted. But the Serious Organised Crime and Police comprehensive policy on reports of effect goes wider. The efficacy of Act 2005 for carrying a placard in abuse or to agree standards of conduct banning terrorist groups, rather than Whitehall bearing – a delicious irony! with the US. It was only in September concentrating on illegal terrorist acts – the George Orwell quotation, ‘In a 2004 that the security agencies themselves, is questionable. Human time of universal deceit, telling the issued guidance to staff involved in Rights Watch points out that ‘apart truth is a revolutionary act.’ Jago interviewing detainees on the Geneva from organizations related to Ireland, compounded his offence by carrying Conventions and UK policy. the majority of the groups [already] several copies of an article in the proscribed under the 2000 Act are American magazine Vanity Fair, Encouraging and glorifying of Islamic origin’.87 The policy of headed ‘Blair’s Big Brother Legacy’ terrorism extending proscription to Hizb-ut- which were confiscated by the police. The Terrorism Act 2005 introduced Tahrir and other radical non-violent ‘The implication that I read from a new offence of ‘glorifying’ the groups under the 2006 Act is likely to this statement at the time was that commissioning and preparation of be regarded as further discrimination I was being accused of handing acts of terrorism (of the past, present against Muslims. ‘Protect our rights’, out subversive material,’ Jago said. or future) which other people may an association of various human Henry Porter, the magazine’s London understand as ‘direct or indirect’ rights organisations, Islamic and editor, wrote to the Metropolitan encouragement to similar acts. The other, argues that it ‘is a political Police Commissioner, ‘The police told same Act widened the grounds for the organisation that has been committed Mr Jago that this was “politically proscription of organisations under to non-violence for 50 years’; and that motivated” material, and suggested it the Terrorism Act 2000 to cover non- there can be no more justification for was evidence of his desire to break the violent bodies that glorify past, present banning it than the British National law. I therefore seek your assurance or future terrorism. A raft of criminal Party, ‘whose members have been that possession of Vanity Fair within laws already covers direct or indirect accused of inciting and perpetrating a designated area is not regarded as incitement to terrorism and there was violent racist acts. In a democracy, “politically motivated” and evidence of 89 no need to create this new offence, neither should be proscribed. Those conscious law-breaking.’ especially in such broad and poorly of us who disagree with them should In August 2005, Charles Clarke, drafted terms. On its own, the offence confront them politically. If their the then Home Secretary, published is a serious threat to legitimate free members break the law they should a list of ‘unacceptable behaviours’ expression, which is likely to bear be dealt with by the criminal justice that would justify him deporting 88 down heavily on members of the UK’s system.’ foreign nationals on the grounds Muslim communities; but coupling There is a small crowd of other that they were ‘non-conducive to the it with the power to proscribe non- laws and measures that seek to stifle public good’. The exercise of powers violent organisations damages freedom the encouragement or glorification of deportation is thus now extended of association as well, doubling its of terrorism. Behind them all lies the to those who represent an indirect effect. This smells of state censorship government’s desire to stamp out threat; dual nationals may be stripped and the new provisions could breach radicalisation without quite knowing of their British citizenship on similar Articles 9, 10 and 11 of the European how or where it grows. There is grounds (and this measure may even Convention, protecting the freedoms now a companion offence under the be applied retrospectively). The JCHR Terrorism Act 2005 of disseminating questions whether this new initiative of thought and conscience, expression ‘terrorist’ publications, which is is compatible with Article 10 of the and association, depending on how designed to tackle bookshops and ECHR [freedom of expression].90 they are interpreted. Someone may be websites that deal in such propaganda. ‘Protect our rights’ warns that guilty of glorifying terrorism without This offence includes publications enforcing such a list to deport people meaning to do so as the offence which contain ‘information of will be ‘perceived as censorship of could cover any reference to political assistance’ to terrorists. Again, existing those who might criticise British violence at any time against any laws give the authorities sufficient foreign policy or call for political unity government anywhere in the world. powers to deal with people publishing among Muslims…carrying the dual Would for example the radical Muslim material inciting or assisting terrorist risk of “radicalisation” and driving the musician, Aki Nawaz, fall foul of this acts. This offence casts an imprecise “extremists” further underground, to law? His new album, All is War (The net too widely. The prosecution use the government terminology.’91 Benefits of G-had), has tracks about need not show that an accused The use of immigration and asylum Osama bin Laden, the immorality of person intended to encourage or powers to further the government’s the west and suicide bombers: facilitate terrorism; it is enough just counter terrorism strategy heightens Cookbook DIY to make available a publication that fears of the discriminatory effect I’m strapped up cross my chest bomb someone else may regard as useful for of its measures, such as the use of belt attached terrorism. As JUSTICE has pointed immigration powers to detain or bail Deeply satisfied with the plan I out, the London A-Z may thus qualify terrorist suspects and the attempts hatched as a ‘terrorist publication’. These to secure diplomatic assurances Electrodes connected to a gas cooker measures encourage the suppression from abusive regimes to justify their lighter.86 of dissenting views well beyond the deportation. The government included

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 53 in the Immigration, Asylum and a political discussion in there and even 18 The Secretary of State for the Home Nationality Act 2006 a new test for the Imams and stuff, they won’t let Department vv JJ and Others, EWCA 1623 depriving people of citizenship or the you- . . . [It’s] the law, the law, you’re Admin. right of abode in the UK, measures not allowed to.’ (See Chapter 3 also.) 19 First Report of the Independent Reviewer to deny suspected terrorists asylum Pursuant to Section 14(3) of the Prevention of Footnotes and providing for appeals against Terrorism Act 2005, TSO, 2 February 2006: 13. For the list see: Annex 2: 29-35. deportations on national security 1 Submission from Amnesty International, 20 Parliamentary Joint Committee on Human grounds to be brought out of country, Europe and Central Asia Programme, to the Rights, Counter-Terrorism Policy and Human unless challenged on a basis of human JCHR’s inquiry into counter-terrorism policy Rights: Draft Prevention of Terrorism Act 2005 rights. The JCHR has raised concerns and human rights’, 14 October 2005. (Continuance in force of sections 1 to 9) Order 2 about the compatibility of powers to The JCHR is a joint committee of both 2006, HC 915, TSO, 20 February 2006: 15. deprive people of citizenship and a Houses of Parliament on which MPs and 21 Parliamentary Joint Committee on Human peers serve together. It was set up to advise right of abode with Articles 3, 5, 8 Rights, Counter-Terrorism Policy and Human Parliament on the human rights implications and 14 of the European Convention Rights: Draft Prevention of Terrorism Act 2005 of government legislation after the Human (the protection of people against (Continuance in force of sections 1 to 9) Order Rights Act 1998 and to report more widely on torture, the right to liberty, respect 2006, HC 915, Stationery Office, 20 February human rights issues in the UK. for private and family life and non- 2006: 24. 3 Bjørgo, T., ‘Conclusions’ in Root Causes of discrimination).92 In the JCHR’s view, 22 Parliamentary Joint Committee on Human Terrorism: Myths, realities and ways forward, the powers to enforce out-of-country Rights, Counter-Terrorism Policy and Human Routledge 2005: 256-262. appeals also conflict with the Refugee Rights: Draft Prevention of Terrorism Act 2005 4 Convention.93 Even the Guardian/ICM poll of 22 August (Continuance in force of sections 1 to 9) Order 2005 obliged respondents to make this choice, We questioned Hazel Blears, 2006, HC 915, Stationery Office, 20 February rather than to allow them to choose both 2006: 26. the then Home Office minister security and liberty. responsible for counter terrorism, 23 Parliamentary Joint Committee on Human 5 See further, Klug F, Starmer K, and Weir S, about the centrality of offences that Rights, Counter-Terrorism Policy and Human The Three Pillars of Liberty: Political Rights Rights: Draft Prevention of Terrorism Act 2005 criminalise encouraging and glorifying and Freedoms in the UK, Routledge, 1996 terrorism (and which carry heavy (Continuance in force of sections 1 to 9) Order 6 Parliamentary Joint Committee on Human 2006, HC 915, Stationery Office, 20 February sentences). Her reply was that these Rights, Anti-Terrorism, Crime and Security Bill, 2006: 26. offences were intended to bring about HC372, TSO, 16 November 2001: para 78. 24 Parliamentary Joint Committee on Human a change in the way individuals 7 Parliamentary Joint Committee on Human Rights, Counter-Terrorism Policy and Human expressed themselves as well as actual Rights, Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 prosecutions. Such changes are not Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order necessarily ‘conducive to the public (Continuance in force of sections 1 to 9) Order 2006, HC 915, Stationery Office, 20 February good’. Human rights organisations 2006, HC 915, TSO, 20 February 2006: 24. 2006: 19-20. warn that such repressive measures 8 House of Commons Home Affairs 25 Op cit, pp. 20-21. have a ‘chilling effect’ upon political Committee, Terrorism and Community 26 Op cit, p.23. freedom and the quality of public Relations, HC 165-III, TSO, March 2005: 27 Op cit, Report by Mr Alvaro Gil-Robles, Q474. debate. As Human Rights Watch has p.10. warned, such measures were ‘likely to 9 Letter to the Guardian, 7 October 2005. 28 Op cit, p.27. have an impact on the media, whether 10 Report by Mr Alvaro Gil-Robles, 29 An Algerian held pending deportation through self-censorship, or the Commissioner for Human Rights, on his visit finally asked to return voluntarily on 16 June prosecution of journalists or editors’; to the United Kingdom, 4th – 12th November 2006, this risking possible torture rather than 2004, CommDH (2005)6, Council of Europe, 8 have a negative impact ‘on free speech stay in detention any longer. Sources close to June 2005: 5. generally’; and alienate ‘the very him said he was leaving out of ‘desperation’. 11 The full report is on the website of the communities whose support is needed 30 First Report of the Independent Reviewer 94 Joseph Rowntree Reform Trust, www.jrrt. in the fight against terrorism’. Pursuant to Section 14(3) of the Prevention of org.uk . The report also contained a précis Even measures that are only Terrorism Act 2005, The Stationery Office, 2 of all recent counter terrorism legislation. A proposed but not ultimately introduced February 2006: 4. summary in printed form is also available. can have a ‘chilling effect’. One of the 31 Op cit, pp. 41-42. 12 Private information. proposals in the Prime Minister’s 12 32 Op cit, p.16. Point Plan was to consult on taking 13 Amnesty International, Submission from 33 Op cit, Report by Mr Alvaro Gil-Robles, p.10. new powers to close ‘places of worship’ Amnesty International on the Draft Terrorism 34 used for fomenting extremism. His Bill, 12 October 2005: section 1. Amnesty International , Submission from 14 JCHR, Counter-Terrorism Policy and Human Amnesty International, Europe and Central aim was clearly to close down some Asia Programme, to the JCHR’s inquiry into mosques. The idea was widely Rights: Terrorism Bill and related matters, HC 561 – I, 28 November 2005: 13-14. counter-terrorism policy and human rights, 14 condemned and caused outrage in October 2005. 15 Blunkett, D, The Blunkett Tapes: my life in Muslim circles. But though it was 35 Cm 3420, 1996: Chapter 8 and para 8.5; never introduced, together with the the bear pit, Bloomsbury, 2006: 275, 277, 280- 81. Lord Carlile of Berriew Q.C., Report on the other government measures designed operation in 2004 of the Terrorism Act 2000, 16 ‘to change the way people express The Law Lords ruled that the power was TSO, 2004: paras 76-78. disproportionate (Article 15 of the ECHR) and themselves’, it still discourages quite 36 Home Affairs Committee, Terrorism discriminatory since it applied only to foreign proper debate in some of Britain’s Detention Powers, HC 910, TSO, July 2006. nationals (Article 14). The JCHR had already mosques. For example, one young raised in 2001, among other problems, the 37 JCHR, Counter-Terrorism Policy and Human Bangladeshi woman in our south prospect that it might also be incompatible Rights: Terrorism Bill and related matters, HC London focus group complained about with Article 5 (the right to liberty) where 561 – I, 28 November 2005: 36-37. the legal ‘restrictions’ on the freedom discrimination was exercised. See JCHR, 38 ‘Submission from JUSTICE to the JCHR’S of debate at her mosque: ‘because Anti-Terrorism, Crime and Security Bill, inquiry into counter-terrorism policy and you can’t – if you wanted to have a HC372, TSO, 16 November 2001: para 38. human rights’, 17 October 2005. discussion in the mosque, you can’t do 17 See Report by Mr Alvaro Gil-Robles, op cit, 39 Home Affairs Committee, Terrorism it now. Some mosques you can’t have p.8. Detention Powers, op cit.

54 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT 40 Terrorism Act 2000, section 43. the Prevention of Torture and Inhuman or Bay and Iraq, Cm 6469, Stationery Office, 1 41 Terrorism Act 2000, sections 44-45. Degrading Treatment or Punishment, CPT/Inf: March 2005: 30. 10 August 2006: 16. 85 42 Home Office Statistical Bulletin, Arrests Intelligence and Security Committee, The for Recorded Crime (Notifiable Offences) and 68 Report to the Government of the United Handling of Detainees by UK Intelligence the Operation of Certain Police Powers under Kingdom on the visit to the United Kingdom Personnel in Afghanistan, Guantanamo PACE, England and Wales, 2004/05, 21/05, 16 carried out by the European Committee for Bay and Iraq, Cm 6469, Stationery Office, 1 December 2005: 1 and 12. the Prevention of Torture and Inhuman or March 2005: 31. Degrading Treatment or Punishment, CPT/Inf: 86 43 ‘Memorandum submitted by the See the Guardian, 28 June 2006. Nawaz 10 August 2006: 12. Association of Chief Police Officers’, 14 says that he expects a knock on the door from September 2004, House of Commons Home 69 Report by Mr Alvaro Gil-Robles, MI5. Affairs Committee, Terrorism and Community Commissioner for Human Rights, on his visit 87 Submission from Human Rights Watch on Relations, HC 165-II, Written Evidence TSO, to the United Kingdom, 4th – 12th November the Draft Terrorism Bill, 7 October 2005. December 2005: 2. 2004, CommDH (2005)6, Council of Europe, 8 88 ‘Joint Submission from “Protect our June 2005: 11. 44 Home Office, Statistics on Race and the rights”…to the JCHR’s inquiry into counter- Criminal Justice System – 2005, 2006: 22. 70 A and Others v Secretary of State for the terrorism policy and human rights’. Home Department [2005] UKHL 71, per Lord 45 Home Office Press Release, 220/2004, 2 89 The Independent, June 29, 2006 Bingham of Cornhill para. 56. July 2004. 90 JCHR, Counter-Terrorism Policy and 71 46 Goldstein, J. G., Ethnic Profiling and Parliamentary Joint Committee on Human Human Rights: Terrorism Bill and related Counter-Terrorism: Trends, Dangers and Rights, The UN Convention Against Torture matters, HC 561 – I, 28 November 2005: 41. (UNCAT), HC 701, Stationery Office, 26 May Alternatives, Open Society Justice Initiative, 91 ‘Joint Submission from “Protect our 2006: para 49. June 2006. rights”…to the JCHR’s inquiry into counter- 72 47 Home Office, Statistics on Race and the Parliamentary Joint Committee on Human terrorism policy and human rights’. Rights, The UN Convention Against Torture Criminal Justice System – 2005, 2006: 22. 92 JCHR, Counter-Terrorism Policy and (UNCAT), HC 701, Stationery Office, 26 May 48 YouGov survey, 15-22 July 2005. Human Rights: Terrorism Bill and related 2006: para 52. 49 Lord Carlile of Berriew Q.C., Report on the matters, HC 561 – I, 28 November 2005: 54. 73 Parliamentary Joint Committee on Human operation in 2004 of the Terrorism Act 2000, 93 JCHR, Counter-Terrorism Policy and Rights, The UN Convention Against Torture The Stationery Office, 2004: para 115. Human Rights: Terrorism Bill and related (UNCAT), HC 701, Stationery Office, 26 May matters, HC 561 – I, 28 November 2005: 58. 50 51 R v Commissioner for the police of the 2006: para 56. Metropolis and another ex parte Gillian and 94 Submission from Human Rights Watch on 74 Report by Mr Alvaro Gil-Robles, another [2006] UKHL 12, per Lord Hope of the Draft Terrorism Bill, 7 October 2005. Commissioner for Human Rights, on his visit Craighead, para 45. to the United Kingdom, 4th – 12th November 51 Lord Carlile of Berriew Q.C., Report on the 2004, CommDH (2005)6, Council of Europe, 8 operation in 2004 of the Terrorism Act 2000, June 2005: 12. The Stationery Office, 2004: para 106. 75 See also, Parliamentary Joint Committee on 52 Under the Race Relations (Amendment) Act Human Rights, The UN Convention Against 2000. Torture (UNCAT), HC 701, Stationery Office, 53 ECRI General Policy Recommendation No 26 May 2006: paras 130-31. 8., adopted 17 March 2004. 76 For an account of these developments, see: 54 Afshar, H., Democracy and Islam, Hansard Parliamentary Joint Committee on Human Society 2006: 7. Rights, The UN Convention Against Torture 55 Submission from Amnesty International, (UNCAT), HC 701, Stationery Office, 26 May Europe and Central Asia Programme, to the 2006: pars 19-21. JCHR’s inquiry into counter-terrorism policy 77 Parliamentary Joint Committee on Human and human rights’, 14 October 2005. Rights, The UN Convention Against Torture 56 See, for example: Association of Chief (UNCAT), HC 701, Stationery Office, 26 May Police Officers (ACPO), ‘Briefing Note 2006: para 22. concerning ACOI Firearms policy and Deadly 78 Parliamentary Assembly of the Council and Determined Attacks’. of Europe, Alleged secret detentions and 57 HC Debates, 25 January 1988, c21-35. See unlawful linter-state transfers, report by Dick also Klug, Starmer and Weir, The Three Pillars Marty to the Legal Affairs and Human Rights of Liberty, Routledge 1996, and The Times, 9 Committee, Doc. 10957, 12 June 2006. February 1988. 79 See www.guardian.co.uk/usa/rendition . 58 SACHR Annual Report, 1992-93. 80 Parliamentary Joint Committee on Human 59 See the JCHR report, The UN Convention Rights, The UN Convention Against Torture Against Torture (UNCAT), HC 701, Stationery (UNCAT), HC 701, Stationery Office, 26 May Office, 26 May 2006: para 1. 2006: para 156. 60 Concluding Observations of the 81 Parliamentary Joint Committee on Human Committee against Torture, Conclusions and Rights, The UN Convention Against Torture Recommendations: United Kingdom of Great (UNCAT), HC 701, Stationery Office, 26 May Britain and Northern Ireland – Dependent 2006: para 157. Territories, 10 December 2004, CAT/C/ 82 Parliamentary Joint Committee on Human CR/33/3. Rights, The UN Convention Against Torture 61 Op cit, p. 4. (UNCAT), HC 701, Stationery Office, 26 May 62 Op cit, p. 4. 2006: para 159. 83 63 Op cit, p. 5. Intelligence and Security Committee, The Handling of Detainees by UK Intelligence 64 Op cit, p. 5. Personnel in Afghanistan, Guantanamo 65 Op cit, p. 6. Bay and Iraq, Cm 6469, Stationery Office, 1 66Op cit: pp. 10-11. March 2005: 29. 67 Report to the Government of the United 84 Intelligence and Security Committee, The Kingdom on the visit to the United Kingdom Handling of Detainees by UK Intelligence carried out by the European Committee for Personnel in Afghanistan, Guantanamo

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 55 Chapter 6 Safeguards and Oversight

he ‘rules of the game’ are appeal and redress for the individual.’2 with the ECHR. However, as is well changing. The government known, the courts cannot strike Thas given the security forces The role of the judiciary down primary legislation, such as the ever greater powers and discretion, For Blackstone, the great legal Terrorism Act 2005. The government the range of surveillance of British authority, the existence of the judiciary can under the HRA reject the courts’ subjects is expanding, suspects are consisted ‘one main preservative of the rulings, but so far ministers have in held in custody or are otherwise public liberty’. He explained that practice complained vociferously deprived of their liberty without about the judges’ interventions while charge and criminal justice liberty cannot subsist long in any submitting to the appeals process and safeguards are under threat. Britain state, unless the administration of ultimately adjusting the legislation as plainly faces prolonged danger from common justice be in some degree necessary (though sometimes in the international and ‘home-grown’ separated both from the legislative process creating further human rights 3 terrorist conspiracies; what is scarcely and also from the executive power. concerns). ever acknowledged is that we are The fact is that the judiciary has The judiciary’s role as preservative equally in danger of losing hard- over time had a chequered history in of the public liberty is strengthened by won liberties and protections for acting as a ‘preservative of the public the presence of the European Court of an equally long time and perhaps liberty’. In the 17th and 18th centuries, Human Rights and its jurisprudence forever. Occasionally, under pressure for example, Chief Justices Sir Edward and by the activities of the Council in Parliament, the government Coke and the Earl of Camden stood of Europe, which is responsible concedes a ‘sunset’ clause on a piece firm against executive power; during for the ECHR. The Council has a of legislation, but for the most part the second world war and afterwards Commissioner for Human Rights its counter terrorism legislation is of judges were often, as Lord Atkin said (whom we quote above) and also indefinite duration and, as we show in a famous dissenting speech in 1941, regularly sends an investigation below (page 62), even on crucial ‘more executive-minded than the team to check upon the conditions issues, such as control orders, the Executive’.4 Similarly, the protection of detention in the UK; the Council government is able to renew time- of liberty that the writ of habeas has also adopted a comprehensive limited provisions with ease once they corpus has offered British citizens statement of the position on counter are no longer in the spotlight. has flowed and ebbed over time. But terrorism, entitled Guidelines on In these circumstances, the the traditions of the independent and Human Rights and the Fight Against safeguards that exist for the protection separate judiciary; adherence to the Terrorism.5 Within civil society, of human rights and due process and principle of habeas corpus; and the JUSTICE, Amnesty, Liberty and many parliamentary and other oversight protection of the rights of the accused other bodies also play a role in seeking of the executive and security forces in the criminal justice system, remain to protect ‘the public liberty’ and take on pronounced importance. a touchstone of freedom in the United among lawyers there is an outstanding In a comment on control orders, Kingdom. All three are under attack human rights tradition that ensures Alvaro Gil-Robles, the Council of both from the executive and in a that the government’s counter Europe’s Commissioner for Human comparatively weak Parliament. terrorism legislation comes finally Rights, argued that the government’s The courts are well placed to under robust challenge in the courts exceptional counter terrorist measures protect liberties within a human on behalf of individual people affected. could only be justified ‘for the duration rights framework which insists Thus far, the courts have largely of, and in proportion to’ the terrorist upon a proportionate balance fulfilled their obligations to protect threat; and that it was essential that between safeguarding the right to human rights under the ECHR. As the necessary judicial guarantees life and civil and political rights. we have seen (page 46), when the apply to proceedings resulting in their The judiciary have developed the government sought to evade the application and that the legislation process of judicial review of public European Court ruling that the UK providing for such exceptional decision-making and their role in may not deport people to countries measures be subject to regular protecting civil and political rights where they may be executed or parliamentary review.1 Similarly Lord and asserting safeguards against tortured6 by legislating to hold foreign Newton’s report argues that, ‘The arbitrary detention and arrest has suspects in indefinite detention authorities are not infallible so their been strengthened by giving effect without trial, the House of Lords found powers must include limitations and to the European Convention on that this device was discriminatory safeguards to reduce the danger that Human Rights (ECHR) in British and unlawfully deprived them of their they could be misapplied’. These law through the Human Rights Act liberty. Similarly, in August 2006, the safety devices should include ‘special 1998 (HRA). Individuals can seek Court of Appeal held that stringent procedures for authorising their use, redress for violations of Convention control orders holding six Iraqi terror periodic review and renewal, regular rights in the courts and the judiciary suspects under partial house arrest reporting of usage, independent have ruled that aspects of the counter and further restricting their liberty oversight, and exercisable rights of terrorism laws are incompatible without trial breached their human

56 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT rights (see page 46). The courts are the results of focus groups and the place to protect the secret intelligence- also prepared to use their powers to politics of triangulation, and not by gathering techniques (Guardian, 21 oversee attempts by the government fundamental principles of law. The September 2006). Paradoxically, those to derogate from the European Prime Minister and ministers have close to the government’s thinking Convention. Under the HRA, the no business threatening amending on the use of intercept information government may derogate from the legislation or querying court decisions. say that it is precisely because the ECHR in a national emergency under They protest too much. Take the government has been concerned for secondary legislation and did so in more considered view of the specially the human rights of suspects under an attempt to stay within the law over convened joint committee on the then ‘equality of arms’, that it has so far the indefinite detention of foreign draft Civil Contingencies Bill which resisted amending the law until a nationals. But the courts can overturn took expert evidence in 2003 on the scheme compatible with the Human secondary legislation; and in their role of the courts in dealing with Rights Act can be devised. Yet one December 2004 judgment in this case, emergency powers and concluded way out of this dilemma has been to the Law Lords quashed the derogation that there was little evidence that they introduce preventive detention by order that had been used to make the were overly ‘activist’; indeed, much various means for a small number of detentions human rights compatible.7 of the evidence clearly indicated that suspects (several of whom have even the courts gave ‘proper deference’ been cleared on terrorist charges in Judicial review to the executive in times of national court), with scarcely any equality It is an essential function of the emergency. JUSTICE and other of arms. We discuss pre-charge judiciary to protect citizens against organisations have protested against detention and control orders and unlawful acts of government, its the impropriety of the Prime Minister the development of a ‘shadow’, or agencies and officials. It is the and his colleagues making statements parallel, system of justice driven by the constitutional duty of the courts, if ‘seeking to instruct members of the executive above (pages 46-47). proper application is made to them judiciary as to how they should carry These deviations from the old by an aggrieved citizen, to check out their constitutional functions’. rules of the game demand new the executive and public authorities Their conduct is improper not only arrangements for effective judicial from exceeding their powers and to insofar as it is designed to intimidate scrutiny and representation, not direct the duties they owe to private and influence the course of judicial simply to try and ensure that such citizens; and it is fundamentally conduct, but also because it fuels a detention is not arbitrary, but also to important that they should do so potential populist reaction against the give a degree of legitimacy to changes fearlessly in a period of political over- rule of law itself. that may deprive people of their liberty reaction and media exaggeration. without being charged, without being Moreover, this government’s own Criminal justice safeguards informed of the evidence against them Human Rights Act specifically directs Britain’s adversarial criminal justice and without being represented by the courts to review the necessity and system, scorned though it is by counsel of their own choice. proportionality of legislation in cases ministers, is designed to secure the Under the Terrorism Act 2006, the affecting human rights.8 The Prime fair trial of all accused people and to police may now hold a terror suspect Minister and colleagues however ensure that the police, prosecution for interrogation and continuing bitterly and publicly complain that and courts observe due process at inquiries for up to 28 days without the judges are interfering in decisions all stages. People suspected of being charge. After seven days, the police that belong in the realm of Parliament terrorists – be they British, foreign, are obliged to seek the authority of and the executive, and are putting or dual nationals – ought therefore in a district judge (criminal) for further the safety of the public at risk. principle to be charged with criminal periods of detention for up to 14 days David Blunkett’s outbursts against offences and brought to trial in a in all; between 14 and 28 days they the judiciary while he was Home timely fashion (or otherwise released). must get the authority of a senior Secretary established a tradition that Their guilt or otherwise could then be circuit judge for up to seven days at a has if anything hardened since then. determined by a jury trial that observes time to a maximum of 28 days without After the London bombings, Tony due process. The safeguards in place charge. The suspects are represented Blair specifically singled out the Law would include the presumption of by their own lawyers, but there are Lords’ ruling against the indefinite innocence; the burden of proof would serious doubts about the process as detention of foreign nationals in his fall upon the prosecution; the criminal a whole. District judges are at the statement about the ‘rules of the standard of proof (beyond reasonable lowest level of judicial rank. They are game’ changing. John Reid’s own doubt) would apply. The accused applying a system designed initially wide-ranging onslaught on judges would be represented by a counsel to deal with seven-day detention, not and others who are critical of the of their own choice; would be made up to 14 days; and they have to deal government’s counter terrorism aware of the charges and evidence with a substantial number of cases. strategy – the ‘they just don’t get it’ against them; and their counsel would They are presented with one-sided speech – is simply the most recent be able to cross-examine evidence and material with little opportunity for challenge to the legitimacy of the witnesses on their behalf. detailed scrutiny; the material is not courts’ proper role (see also page 56). As we have noted (see pages open to adversarial challenge by a The doctrine of the separation 49-59) the government has refused suspect’s lawyer; they have no role of powers and its importance to to take measures urged upon it by in the inquiry taking place; and have democracy is simple enough to numerous expert observers to facilitate no access to independent counsel or understand. The danger of leaving prosecutions of suspects – most advice. Recently the Commons Home decisions on detention, arrest, notably through lifting the ban on the Affairs Committee stated (before freedom of speech and other civil use of domestic intercept evidence in the extension to 28 days) that ‘we and political rights to ministers and open court. The ban remains in force, share the wide-spread unease at the parliamentarians is that decisions though, as we mention above, the prospect of the existing system being on our lives and liberties would be Attorney General has now said that used to provide judicial oversight of regulated only by their own opinions, sufficient safeguards can be put in even longer pre-charge detention.’9

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 57 The regime of safeguards for the base; the government has accepted bungled Forest Gate operation, show terror suspects subject to control this recommendation in principle that it can also be wrong and even order and the further suspects held (he wants ‘rapid progress on this’).11 negligently so. If individuals are in detention ‘pending’ deportation The parliamentary Joint Committee deprived of their liberty on a basis of under the Immigration Act 1971 on Human Rights (JCHR) has secret information which cannot be (and before that, indefinite detention pointed to the ‘significant problem’ examined and challenged in open under Part Four of the Anti-Terrorism, that the special advocates are court, the risk that mistakes will be Crime and Security Act 2001) puts in appointed by the Attorney General, made increases considerably. In 1991, place safeguards for the protection ‘who not only represents a party to on the eve of the first Gulf War, the of the liberty of suspects that are the proceedings…but is the only government, acting on intelligence considerably weaker than those other legal representative present information, began detaining Iraqi demanded under due process. Yet during the closed hearings, in the and other foreign nationals present these people are being deprived of absence of the detainee or their legal within the UK on the grounds that the liberty to varying degrees for an representative.’12 The government has, they posed a terrorist threat. By 28 indefinite period without actually as we report above (page 47) ‘bent’ January 101 Iraqis and 10 other being charged with an offence (and the rules of the game to detain terror foreign nationals had been detained some have in fact been found not suspects ‘pending’ deportation for long under the Immigration Act 1971, guilty of terrorism charges). (and potentially indefinite) periods having been served with notice of the We have described the distinction under the Immigration Act 1971. They intention to deport them for reasons between non-derogating and have a right of appeal to the Special of national security. 35 further Iraqis derogating control orders above. On Immigration Appeals Commission were held in military custody as the insistence of MPs, a High Court (SIAC) which Jack Straw, as Home prisoners of war.14 The route of appeal judge considers the executive’s case Secretary, set up in 1998 in response against such detentions was to a non- for applying a non-derogating control to the Chahal judgment (see page 52). judicial panel of ‘Three Wise Men’ order to a suspect and the renewal of The European Court ruled in part that – a less satisfactory route even than an order after periods of 12 months. the panel of ‘three wise men’ charged SIAC, which had yet to be established. The judge decides first whether the with reassessing the Home Secretary’s MPs – amongst whom David Blunkett Home Secretary has a case and then decisions to deport people on national was prominent – and others protested holds a hearing in which the standard security grounds did not constitute a against these detentions. The quality of proof is ‘reasonable suspicion’. For proper court for such decisions. SIAC of the intelligence was shaky. ‘Iraqi derogating control orders, which have comprises three commissioners, one of soldiers’ turned out to be engineering not yet been used, the Home Secretary whom holds or has held high judicial and physics students on scholarships must apply to the High Court for an office and another who is or has been from the Iraqi military. The case order; if the court decides that there an immigration judge. The commission against one man, Ali el-Saleh, was is a case for such an order, it must can hear security sensitive information apparently ‘that his wife’s sister had hold a full hearing. In such cases, the – not made available to the appellant married a man whose uncle was control orders are renewable by the – in closed sessions from which the Abu Nidal.’ An interned Palestinian, court every six months; the standard terror suspect is excluded and who Abbas Cheblak, was an advocate of of proof is ‘balance of probabilities’. As is represented, as for control order Arab-Israeli rapprochement who had the Joint Committee on Human Rights hearings, by a special advocate. SIAC written a sympathetic study of the has argued, these are low thresholds: previously heard appeals against the Jews of Iraq and criticised the invasion the standard of proof should be indefinite detention of terror suspects of Kuwait. A guest editor of Jewish raised to ‘balance of probabilities’ who could not be deported after the Quarterly organised the campaign to for non-derogating control orders Chahal judgment; and now also hears free him.15 The then Prime Minister, and to ‘beyond reasonable doubt’ for appeals against decisions to deprive John Major, concedes in his memoirs derogating ones. people of British citizenship based on ‘we soon realised that some mistakes In any of these hearings, suspects security sensitive information (another in identifying [terrorist suspects] and their counsel may be excluded aspect of the government’s counter were made, through either haste or from closed sessions hearing security terrorism policies). excessive caution.’16 sensitive information. Instead, the Several special advocates resigned There is evidence that some suspects are represented by a special – after first trying to make the system deprivations of liberty since 11 advocate, appointed on their behalf. work over a few years – when SIAC’s September 2001 have also had a The role of these special advocates remit was extended from hearing flawed evidential basis. In the case is constrained. They are not allowed immigration cases to those of terror of one detainee, known as ‘M’, to reveal sensitive information to suspects held in indefinite detention SIAC ruled in March 2004 that the those they represent. Consequently without charge or trial. The first to government’s assessments were ‘they may face the difficult task of leave, Ian Macdonald QC, stated late unreliable and cancelled his detention. being asked…to present facts or in 2004: ‘My role has been altered to In October 2006 SIAC ruled that versions of events in relation to which provide a false legitimacy to indefinite information presented to it by the there is the strongest contradictory detention without knowledge of the government when seeking to deport evidence, but evidence which they accusations being made and without an individual known as ‘MK’ had been are not permitted to reveal in any any kind of criminal charge or trial.’13 used in a contradictory way in the trial form’.10 They are under-resourced It is very hard to judge how of an Algerian, Abu Doha. The error and Lord Carlile has called for them fair the government’s alternative only came to light because a barrister to be given security-cleared case safeguards are in practice. It is by happened to be representing both assistants (he understands ‘practical now well established that intelligence men.17 It is argued therefore that SIAC steps have now been taken to allay is by its nature often speculative has not proved to be entirely a rubber- this concern’). He has recommended and incomplete. The mistakes of the stamp for executive decisions. Yet in too that special advocates should be detentions of Iraqi residents during the the first case ‘M’ was wrongly detained trained and selected from a wider first Gulf war, as well as the apparently without charge for some 15 months

58 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT before the error in authorising his Lord Carlile told us that he public if the Home Secretary deems it detention was established.’18 Without reckoned that the number of areas appropriate. the benefit of independent scrutiny, designated under section 44 could Successful counter terrorism we cannot judge how impartial and be halved. Certainly, the statistics requires the support, trust and co- effective existing arrangements are. on the number of stop and search operation of local communities. One But it seems likely that injustices, as in powers leading to arrests on way of doing this is to ensure that the case of ‘M’, will not be identified suspicion of terrorism – let alone the police and others are accountable by the unchallenging processes set up charges – suggest that there is little for their actions to those local either to prevent them or simply, in systematic intelligence being used communities where they act. Local Macdonald’s words, to ‘provide false either for stops and searches arising police forces are accountable to local legitimacy’. Certainly, too, further from ‘reasonable suspicion’ or the communities through such structures measures for preventive detention will designation of section 44 areas. A as the local police authorities, on require far more robust oversight. Home Office Stop and Search Action whose boards sit local councillors, Team includes an ‘independent magistrates and independent Proscription hearings Community Panel’, on which there are members. However, it is the anti- The government has created the Muslim representatives. But there is terrorist branch of the Metropolitan Proscribed Organisations Appeal no ‘independent scrutiny, involving Police (SO13) that carries out many Commission (POAC), a body similar to the Muslim community, of police of the most significant policing SIAC, that hears appeals against the intelligence and its use as a basis for operations in relation to counter proscription of ‘terrorist’ organisations. stops and searches and arrests’ that terrorism, not local forces. In many POAC has three members, one of the House of Commons Home Affairs instance the manner in which such whom must be a current or past Committee called for in 2005.19 operations are carried out undermines holder of high judicial appellate Circuit judges hear police the efforts of local police forces to office; the other two members are applications for searching premises, build up relationships of trust and co- appointed by the Lord Chancellor. obtaining financial information and operation in their local communities. The Home Secretary first considers requiring the ‘production of persons This insensitivity may, in part, appeals against proscription; if they and materials’ under the Terrorism reflect a gap in the accountability are refused, POAC can hear the case Act 2000; and under section 42 of the structure around SO13. There ‘if it considers that the decision to same Act a justice of the peace may is no direct mechanism for local refuse was flawed when considered in issue a search warrant to a police communities to hold the anti- the light of the principles applicable constable if he or she is satisfied there terrorist branch to account. Instead on an application for judicial review.’ are reasonable grounds for suspecting accountability is at the national level, There is provision for further appeal someone who is liable for arrest as a via the Chief Commissioner, to the on a point of law. Like SIAC, the terrorist is to be found there. Home Secretary. For operations that Commission sits in public but is able The Independent Police Complaints take place in London there is some to hear sensitive evidence in closed Commission (IPCC), created recently accountability to the Metropolitan sessions from which the applicant in the wake of complaints about its Police Authority. The MPA recognises and applicant’s lawyers are excluded. weak predecessor, is charged with the importance of building community A special advocate represents the hearing complaints about police confidence and trust in effective applicant. An internal government conduct resulting in death or serious counter terrorism policing. In 2006 working group also meets every six injury in England and Wales and it began a programme on engaging months to review all proscriptions. may also hear other complaints. The communities in discussions on IPCC decides whether to delegate counter terrorism. However, the MPA’s Oversight of the police an investigation to the local force, ability to scrutinise the actions of the There is a variety of checks, internal to supervise a local investigation or Metropolitan Police is limited, since and judicial, on the exercise of police to manage or lead an investigation its remit is limited to oversight of powers. We noted above the heavy use itself. Its investigators have full police ‘strategic’ matters and not ‘operational’ of stop and search powers designed to powers when on duty and must by law details. One former member of the ‘disrupt’ terrorism and the evidence be given access to police premises, MPA noted to us that, ‘If the police of ethnic profiling in their application documents and other evidence when don’t want to you to discuss an issue, (see pages 49-50). It requires at least requested. they claim it is operational, you an assistant chief constable (or an Sir Ian Blair, the Metropolitan then get into long debates about the officer of equivalent rank) to designate Police Commissioner, sought to distinctions between the two’. Given an area in which police may stop and head off the IPCC investigation into these limitations it will be important search people without the need for the police killing of Jean Charles to consider ways in which to lock in reasonable suspicion under section 44 de Menezes at Stockwell in July greater local community accountability of the Terrorism Act 2000; the officer 2005. But the Home Office ordered for SO13. authorising the designation need that the IPCC should be given full merely ‘consider it expedient for the assistance for an immediate inquiry Reviewing counter terrorism prevention of acts of terrorism.’ The and he succeeded only in delaying laws Home Secretary must be informed the inquiry for a few days. The IPCC Ideally most of the counter terrorism at once and must confirm the order was by contrast given immediate legislation should incorporate within 48 hours if it is not to lapse. Any access to the scene of the Forest Gate sunset clauses, time-limited, say, to constable can cordon off an area, but shooting in June 2006. This suggests a five years maximum and requiring an officer of at least superintendent that it will have at least this degree renewal by primary legislation not rank must take charge as soon as of independence and cooperation in ministerial order.20 The government’s possible. The police must act on the future. However, only its annual gesture in this direction is to appoint ‘reasonable suspicion’ if they are using reports are published automatically. reviewers or review teams as part of counter terrorism stop and search Other reports, as for the inquiry into each legislative package. The Anti- powers outside designated areas. the de Menezes killing, are only made Terrorism, Crime and Security Act

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 59 (ATCSA) 2001’s nine-member Privy role, including the Information a deal on human rights: an increase Counsellor Review Committee under Commissioner, the proposed National in surveillance (the best intelligence, Lord Newton reported in December Identity Scheme Commissioner, as it is not tainted) and thus invasions 2003.21 Lord Carlile has been given a the Commissioners for policing and of privacy in return for continuing portfolio of statutory review functions: terrorism in Northern Ireland, the protection of traditional liberties. (We of the Terrorism Act 2000 (as well police complaints mechanisms; and discuss this in Chapters 5 and 7.) He as, separately, parts of it applying the Parliamentary Ombudsman.22 too believed that internal discipline to Northern Ireland); of Part IV of The Intelligence and Security offered the best protection against ATCSA 2001 (on the detention of Committee (ISC) takes an overall abuse. He described the basic ethical foreign terror suspects who could view of intelligence and security principles that governed intelligence not be deported), now no longer agencies and produces annual and activity in general and surveillance in force; and of the Prevention of one-off reports. The ISC published a in particular. There is a strong echo Terrorism Act 2005 (which provides narrowly-focused report for example of human rights principles here in the legislative basis for control orders. on the 7 July bombings (see page 32). David Omand’s six commandments: Lord Carlile reported on the Terrorism The ISC is based within Parliament There must be sufficient sustainable Act 2006 when it was in bill form; but it is not a select committee. It is a cause for any action; integrity of and he is due to report late in 2006 parliamentary committee in the sense motive; proportionality; appropriate on the definition of terrorism, feeding that it is established by statute to be authority for each action; a reasonable into the government’s plans for a composed of senior parliamentarians chance of success; and covert action consolidation Act for counter terrorism from the major parties; the Prime must be a last resort. He added law. There are additional provisions Minister appoints its members, both that the intelligence and security under which the government provides MPs and peers, in consultation with services outlawed assassination and regular information to Parliament on the Opposition, and it reports to him acknowledged public concerns about its counter terrorism activities; for rather than Parliament. Its reports the use of intelligence for military or example, the Home Secretary reports are usually redacted, sometimes covert action and the acceptance of quarterly on the exercise of control heavily so. It is therefore not wholly information that might be tainted by order powers. independent of the executive and the use of torture or other abuse of Quite what influence these review relies a great deal on the cooperation human rights. processes have is not clear, but at of the security agencies. On the other Yet Juvenal’s eternal question least they provide a public focus for hand, its members are drawn from hardly receives a convincing answer: debate. The government quite robustly the three main parties; it has adopted ‘Quis custodiet ipsos custodes?’ (‘Who rejected crucial recommendations from the non-partisan ethic of select shall guard the guards themselves?’). the Newton Committee – including committees; and members of the three On surveillance, Privacy International the abolition of indefinite detention larger parties who sit on the ISC are judges that the UK is one of the most for foreign nationals; and Lord confident that they carry out their lax western countries and that the Carlile has given indications of his duties with sufficient independence EU states are generally lax, making impatience with the government’s and have expressed their belief that the US seem good in comparison.23 slow progress on his more modest the ISC satisfactorily carries out its Most democratic countries require a proposals for reform. There are doubts tasks of scrutiny. judicial warrant for an interception; about the value of a single individual Our professional sources are more here it demands only the signature of shouldering his package of functions. divided over whether the ISC ‘does the Home Secretary or First Minister There is merit in that he accumulates a good job’ or not and some have (in Scotland). For access to traffic experience nearly across the board criticised it for not trawling as widely data (see Chapter 5), many if not most and practitioners are likely over time as it might for evidence. Governments countries require a judge to sign an to share security-sensitive information have from time to time established order before telephone companies with him. He has been assiduous in one-off inquiries into security matters, hand over the data: here in the UK carrying out his responsibilities. On of varying quality and openness; the it is authorised by a senior police the other hand, it is not desirable latest such inquiry was that of Lord officer. The processes for the agencies for such significant responsibilities Butler into the handling of intelligence are even more opaque. Moreover the to devolve upon the judgment of a on Iraq’s supposed weapons of mass sheer volume of warrants means that single individual, however principled destruction. neither minister can possibly give and able. Moreover, there can be no The work of the security forces is detailed scrutiny to the warrants they guarantee that a reviewer of similar vital for the protection of the public approve. calibre will replace him (or that a and the nation. However there are The Regulation of Investigatory government can be relied upon to try). legitimate concerns about the quality Powers Act 2000 provides for an And there is an arguable tendency for of oversight of agencies which are by Interception of Communications such reviewers, even if independent their very nature intensely secretive. Commissioner to oversee the system in their approach, to ‘go native’ over Lord Butler said that his experience and report to the Prime Minister. While time. in government was that officials were the annual reports contain valuable responsible people who did ‘obey the information they are brief (about 13 Oversight of the ‘intelligence rules’ and that the ‘services people are pages) and much sensitive material is community’ of a pretty law-abiding nature’. The left out of the published version. One Oversight of the activities of the members of the ISC ‘are not pussy of the Commissioner’s strengths is in security forces is conducted by way cats’. He said that judicial monitoring reporting on errors made, for instance of judicial monitoring, through the and the system in general worked well. the wrong telephone line being Intelligence Services Commissioner, An important factor in regulating the monitored. The current Commissioner, the Interception of Communications agencies was ‘the fear of the cost of Sir Swinton Thomas, argues that ‘The Commissioner, and the Office of being found out’. number of errors is unacceptably Surveillance Commissioners. Various As we have seen, Sir David Omand high.’24 other bodies have or will have a suggests that the public should accept The Act also established an

60 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT Investigatory Powers Tribunal for Parliament for its ‘War on Terror’, decided to rush through the Terrorism hearing complaints from members requires parliamentary consent for Bill in 2006 without the pre-legislative of the public. It has nine judicial its policies and legislation, and is phase it had promised, the committee members, and a registrar appointed subject to parliamentary influence did at least hold evidence sessions to to assist with claims alleging and scrutiny. However, structural discuss it in draft form. Meanwhile, infringements of the Human Rights and cultural factors drain away the Foreign Affairs Committee has Act. During 2004, the most recent much of this apparent scrutiny been keeping the international ‘War year for which figures are available, and accountability. Parliamentary on Terror’ under regular review and the tribunal received 90 new sovereignty belongs to the Crown in has reported on its impact at home, complaints, of which it completed the Parliament and not simply to MPs and but has not pursued the implications investigation of 49. On no occasion peers. The Crown – for all practical of this impact on the counter terrorism did it conclude that either the 2000 purposes, the government of the day strategy. Act or the Human Rights Act had been – dominates both Houses, largely However, there has been overall a contravened. While the Interception owing to its command of an absolute gap in examining ‘homeland security’ of Communications Commissioner is single party majority in the Commons. and the government’s counter required to provide such assistance Parliament doesn’t really exist as terrorism strategy as a whole, though as is required to the tribunal, none an institution in its own right, distinct all the above committees have dipped was asked of him in 2004, nor of the from partisan loyalties, and its powers toes in the water. But the committee Intelligence Services Commissioner, to oversee all government policies are structure militates against their ability who is similarly required to provide slight.25 Parliament is not possessed to conduct a cross-cutting review, assistance. of the substantial formal powers and with demarcation concerns further Depending on the agency access to public information that preventing any one committee from involved property warrants are it requires to enable it to carry out seizing the initiative. The existence generally authorised under RIPA oversight of government. On issues of the Intelligence and Security by the Home Secretary or Foreign of national security – as with foreign Committee (ISC) – as we say above, Secretary. Authorisation for overseas policy, making war and signing not a select committee – has in individual acts or classes of acts such and ratifying treaties – the Prime practice also obstructed the access of as theft or bribery are provided in Minister and his colleagues possess parliamentary select committees to practice by the Foreign Secretary. royal prerogative powers which the work and activities of the security Intrusive surveillance in the UK, for absolve them from even consulting agencies (though Douglas Hurd, instance using a device in someone’s or informing either House. Where the then Foreign Secretary who set house or car, is authorised by the parliamentary responsibility does the ISC up, assured MPs that this Secretary of State. Non-intrusive apply, governments are generally able would not happen). Yet his successors covert surveillance and the use of to manipulate the un-codified UK have on several occasions refused to human intelligence sources can be constitution in order to drive through give the Foreign Affairs Committee authorised by a designated person controversial measures with the access to the agencies on the grounds within an agency or other public minimum of parliamentary resistance. that the ISC is responsible for their authority. All of these authorisations The Home Affairs Committee parliamentary scrutiny. The argument and activities are overseen under (HAC) is the ‘lead’ committee on is that select committees had no such RIPA by the Intelligence Services counter terrorism policy, and various access prior to 1994 and so their remit Commissioner, currently Lord Brown other select committees do or may has not ‘been truncated’. 26 In early of Eaton-Under-Heywood. His reports investigate aspects of counter 2006, Dame Eliza Manningham- to the Prime Minister are shorter terrorism – Defence, Foreign Affairs, Buller, Director General of the Security even than those produced by the Science and Technology, the Joint Services, refused to give evidence Interception Commissioner, lacking Committee on Human Rights (JCHR). to or meet informally with the Joint figures for property warrants issued The HAC covers the work of the Home Committee on Human Rights, since all or authorisations for intelligence Office and has therefore a very large the areas of inquiry which the JCHR activities; and similarly omit sensitive brief, taking in much more than just wished to discuss, she said, ‘have been information for publication. terrorism. Since 2001 it has produced or are the subject of investigation by The annual reports take almost three full reports directly on terrorism the ISC.’ a year to appear, as do those of the – on the Anti-Terrorism, Crime and But certain areas are effectively Interception Commissioner, meaning Security Bill in 2001; on terrorism closed off to select committees anyway that oversight of surveillance is very and community relations in 2005; since, as Lord Butler once remarked, much a retrospective activity. Some and on terrorism detention powers in government does not trust them to of the content of one Commissioner’s 2006. To its credit the committee has be responsible. Indeed, ministers report is an exact reproduction of considered terrorism in more than just and advisers are generally more that in the other’s. The Intelligence a security context, as the community willing to cooperate with inquiries Commissioner has taken on relations report (referred to extensively the government itself has set up itself, responsibility for oversight of the in this report) shows. The HAC backs such as the Butler Review and Hutton proposed provision of information the concept of pre-emptive detention Inquiry, than with select committees. without consent from the National through extended pre-charge custody, Further, since the government has Identity Register to the intelligence and is therefore at odds with the JCHR a majority on all select committees, and security agencies. and European human rights standards. and the whips determine their As well as the three reports, the HAC membership, the potential for their The role of Parliament has inquired into other related issues, carrying out fully independent The ruling doctrine of parliamentary such as identity cards and extradition scrutiny is reduced (though this sovereignty in the UK creates and powers; and it holds regular evidence is not to minimise the value of the undermines the principle of ministerial sessions with ministers – including the effective work produced by certain responsibility to Parliament. In theory, Home Secretary – which often deal select committees). The tendency for the government is accountable to with terrorism. When the government parliamentary consensus to develop

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 61 around national security issues has parliamentary oversight is that crucial turn raised very serious human rights an inhibiting effect within the general counter terrorism measures are often issues, not least the proposal that a framework of executive strength and enacted in crisis conditions and rushed politician – the Home Secretary – and parliamentary weakness, further through Parliament without effective not a judge should have the power to reducing the chances of meaningful scrutiny.28 Governments usually justify deprive someone of their liberty, or oversight of counter terrorism policy. the rush to legislation by reference severely constrain it. This and other Moreover, counter terrorism action by to recent atrocities or imminent serious deviations from the traditions the UK is closely associated with the dangers, but it may also be the result of British justice (see also page 58 ‘special relationship’ with the US, a of the government’s own bungling. above) provoked major controversy in long-standing commitment conducted The three major terrorism laws – the both Houses. The government came via the royal prerogative and subject Anti-Terrorism, Crime and Security very close to losing the entire Bill to little parliamentary investigation.27 Act 2001 (ATCSA) , the Prevention of because they could not persuade the These inhibiting effects temper both Terrorism Act 2005 and the Terrorism House of Lords and a substantial body the ‘brute accountabilities’ and party Act 2006 were rushed through of opinion in the Commons that they rebellions that take place in the House Parliament. Under ATCSA 2001 the were entitled to have control orders of Commons. Newton Committee was established in the form that they wanted them. Indeed, it has been put to us that to provide post-legislative review of a They finally secured the Act’s passage the Commons – the only body in the measure that should have been subject through Parliament by offering state possessed of direct democratic to proper pre-legislative review. The early full legislation and renewal of legitimacy – tends to pass on Committee thereupon criticised the the control order provisions so that responsibility for human rights issues way in which the government pushed Parliament could properly address to the unelected Lords. The Lords have the Act through Parliament: all the outstanding issues. That been assiduous in scrutiny of terrorism undertaking was not honoured. By definition, an emergency timetable legislation and frequently return it to Instead, the London bombings does not allow the normal the House of Commons, but ultimately, of 7 July 2005 were used to justify opportunities for full and detailed unless there is intense pressure on accelerating yet another rushed Parliamentary scrutiny. Enacting government business, the government Bill through Parliament with no provisions in this way…ran the risk can take advantage of the Lords’ pre-legislative scrutiny, despite of undermining the usual consensus democratic weakness and vulnerability the government conceding that its for recognising the responsibility to force its legislation through. measures would have not directly of the Government of the day for Nevertheless the government has been prevented the attacks, and renewal of public safety and for giving it forced onto the back foot on its counter control orders only through affirmative greater discretion when approving terrorism legislation, as when the resolutions in both Houses. Debate legislation presented under Lords were able to block legislation for on the government resolutions was emergency conditions.29 control orders early in 2005 – because sandwiched between long debate an election was looming- and then a To emphasise its dissatisfaction, the on the new Terrorism Bill and the Commons rebellion put paid to the Committee further took advantage of parliamentary recess. As Kenneth extension of pre-charge detention to the power it was given under section Clarke MP complained in the debate, 90 days later in the same year. Even 123 of the Act to specify any provision Twelve months ago, both Houses so, on neither occasion did Parliament in the Act which it believed should were full of hundreds of Members wholly reject the government’s cease to have effect within six months consumed with passion for the legislative proposals. For instance, the after its report was published unless great issue of civil liberty, saying division over 90 days’ detention was both Houses passed motions showing that the Government of the day ultimately resolved by a compromised that they had considered the report. should not have their way unless bidding process which arrived at 28 The Committee cited the whole Act, we were satisfied that a British days’ detention – not the best means of in order to make ‘clear our support for citizen’s fundamental rights were making such weighty decisions. the principle of making emergency safe. The number of Members in legislation subject to periodic review the Chamber today scarcely reaches Parliamentary control of and renewable by Parliament.’30 (Both double figures [actually 13 MPs legislation Houses duly debated the report). were in the Chamber] and the The government then drove the It has been a long-standing concern, debate, which is restricted to an detailed most convincingly in Hansard Prevention of Terrorism Act 2005 hour and a half, is being held on the Society reports, that Parliament through Parliament in response to the eve of a recess. The vast majority exercises weak control of the mass of Law Lords’ ruling of December 2004 of hon. Members are well on their legislation that government funnels that indefinite detention without trial way to wherever they will spend the through formal, and largely ineffective, under the 2001 Act was incompatible weekend. checking processes. It is a recognised with the European Convention. parliamentary principle that the Ministers had long received The effect was, in the words of the government ‘must have its business’; considered warnings (from among Joint Committee on Human Rights and its control of the parliamentary others, the Joint Committee on Human (JCHR) ‘significantly to reduce the timetable and procedures, allied rights; see below) that the courts opportunity for parliamentary scrutiny usually with an inbuilt majority in would come to this verdict. Yet they and debate of the control orders the Commons, generally secures went ahead and did not even prepare regime’. In place of ‘detailed debate its legislative programme. The a working alternative, precipitating and scrutiny of a Bill’ there was ‘a Commons standing committees, which a brief constitutional crisis. Thus the single debate in each House with no formally examine bills in detail, are stop-gap and drastically re-written opportunity to amend the legislation stacked with loyal backbenchers and 2005 Act was rushed into law in two to reflect any concerns about its actual timetabled to get Bills through with and a half weeks from start to finish, operation, including its compatibility the minimum of disruption. introducing control orders to replace with human rights standards’.31 The A major and perennial deficiency in indefinite detention. Control orders in committee also complained that it

62 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT had been given hardly any time to so? The committee concluded, ‘we for the Prevention of Torture and give Parliament a fully considered recognise that there may be evidence Inhuman or Degrading Treatment report on the renewal of the orders, of the existence of a public emergency or Punishment (CPT) issued a final between 2 and 15 February.32 As for threatening the life of the nation, report on its inspections in the UK the rushed 2006 Act, the Home Affairs although none was shown to this that March (see page xx above). They Committee noted recently that ‘Many Committee…it is especially important found that the conditions in which of the difficulties the Government for each House to decide whether some of the indefinite detainees experienced in the passage of the they are satisfied of the existence of a were held amounted to inhuman and Terrorism Bill arose from the speed public emergency threatening the life degrading treatment that contravened with which it was drafted and of the nation’.35 It was ‘not persuaded the European Convention. But their presented to Parliament’. Its report, that the circumstances of the present reports are published at the discretion the committee concluded, ‘did the job emergency or the exigencies of of the government involved, and the of examining the police arguments the current situation’ met the UK government held this report back for extended detention which the requirements that justified derogation. for almost a year until June 2005 Home Office should have done before In 2004 the committee, noting a – during which time the Law Lords introducing the Terrorism Bill.’33 statement by the Director General heard the challenge to the validity of the Security Service that the of the derogation from the European Freedom of information international terrorist ‘threat is likely Convention on Human Rights and Information on the security forces, to remain indefinitely’, stated: Parliament was asked to pass the Prevention of Terrorism Act 2005. tribunals and other security bodies is democratic legitimacy demands absolutely exempt from release under The government did not disclose the some independent confirmation existence of the report either to the the Freedom of Information Act 2000 that the emergency remains at and other information on national Law Lords (the Judicial Committee of the level which justified unusual the House of Lords) or to Parliament.38 security depends on the consent of measures…Given the importance ministers. There are obvious reasons of being able to appraise the level why security sensitive material should Joint Committee on Human of the threat from international Rights be protected, but on the other hand terrorism in order properly to assess how are Parliament and the public to the proportionality of…measures… There is a parliamentary committee, make informed decisions about the we think it is necessary to explore the Joint Committee on Human dangers of terrorism and the need for ways in which the Government Rights, which is specifically charged the government’s counter terrorism could present for the public and/or with subjecting government legislation laws if they are not given clear and parliamentary scrutiny more of the to scrutiny on its compliance with relevant information, other than material on which its assessment the European Convention (ECHR) the occasional ministerial or police of the threat from international (as incorporated by the HRA 1998 statement and unattributed media terrorism is based, without into British law) and reporting reports? prejudicing legitimate concerns on broader thematic issues. This Moreover, the secrecy surrounding about revealing intelligence committee is a valuable resource on the security services is more excessive sources. We also consider this which civil society draws (we have even than Whitehall’s secretive norms; to be an issue of the democratic drawn extensively on its work for this and the government’s addiction to legitimacy of counter-terrorism report) more than the government spin makes it harder still for the public laws, given the existence of public does, but its 18 high-quality reports to gain a clear understanding of the concerns about both the reliability that consider directly or partially case for exceptional measures and of intelligence reports and the use the government’s counter terrorism restrictions on civil and political rights to which they are put.36 legislation are frequently quoted in that it has been seeking in Parliament. parliamentary debates on these laws. The Joint Committee on Human Even the constant alterations to The committee is also carrying out a Rights has repeatedly expressed its counter terrorism legislation are not broader and ongoing themed inquiry. frustration about the government’s adequately made public. The Terrorism The JCHR has 12 members, reluctance to provide sufficient Act 2000 was subject to numerous six MPs and six peers, and is information to parliamentarians. changes after it first became law. chaired by Andrew Dismore MP, When David Blunkett, then Home Lord Carlile asked us to reinforce his a member of the governing party. Secretary, was arguing in 2001 for repeated requests for the placement of They have often proved prescient in a derogation from the European ‘an up to date edition of the TA2000 as publishing warnings that aspects of Convention to allow for the indefinite currently in force…on the Home Office the government’s proposals are not detention without charge of foreign website. Given the prevalence of new compatible with the ECHR, but the suspects, the JCHR accepted that criminal justice legislation as a policy government has ignored them – and, data sources must be kept secret, preference in most Parliamentary indeed, has not cooperated as much as but still expressed concern about sessions, even those of us involved it might with the committee. We cite ‘the lack of specificity in the reasons on a frequent basis in the effects of above for example their warning from given…for asserting that there is a TA2000 find it difficult to keep up the outset that the indefinite detention public emergency threatening the life with changes.’ The Home Office has of foreign nationals without charge of the nation [our emphasis, these are (at time of writing) still to make good probably violated the ECHR. In July the grounds for derogation]’. David its repeated assurances that it would 2004, echoing Newton, the committee Blunkett said for example that ‘the post the up-to-date Act on the official called upon the government to repeal threat is variable, but is generally website.37 the law providing for ‘indefinite greater at present than, for example, The government also suppresses administrative detention’.39 The that from the IRA from the 1970s relevant information, not of a security government did not act upon this onwards because today’s terrorists are sensitive nature, which could assist suggestion; in December 2004 the believed to have access to weapons Parliament in its deliberations. In Law Lords ruled that this detention of mass destruction.’34 Is this really July 2004, the European Committee was incompatible with the ECHR

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 63 for reasons the JCHR had referred HC1576, Stationery Office, 24 July 2006: 44. to, including discrimination and 21 Privy Counsellor Review Committee, proportionality. Anti-terrorism, Crime and Security Act 2001 The government now appears to Review: Report, HC100, Stationary Office, 18 be ignoring concerns the JCHR has December 2003. raised about the compatibility of 22 Submission from Dr C N M Pounder to control orders, as currently enacted, JCHR, 4 October 2005. with the European Convention, over 23 See for example www.privacyinternational. which it is likely to lose once again org/index and www.privacyinternational.org/ in the courts (see page xx above). article.shtml?cmd Ministers might also be well advised to 24 Report of the Interception Communications consider the concerns the committee Commissioner for 2004, HC 549, 3 November has raised about extended pre-charge 2005: 4 detention. 25 See further, Beetham, D, et al, Democracy under Blair, Politico’s, 2004; and Burall, S, Footnotes Donnelly, D, and Weir, S, (eds) Not in Our Name: Democracy and Foreign Policy in the 1 Report by Mr Alvaro Gil-Robles, UK, Politico’s, 2005 Commissioner for Human Rights, on his visit 26 to the United Kingdom, 4th – 12th November See Burall, S, Donnelly, B, and Weir, S, Not 2004, CommDH (2005)6, Council of Europe, 8 in Our Name: Democracy and Foreign Policy June 2005: 10. in the UK, Politico’s, 2006 27 2 Anti-Terrorism, Crime and Security Act See further, Not in Our Name, fn 17. Review: Report, TSO, HC 100, 18 December 28 See The Three Pillars of Liberty: Political 2003: 24-26. Rights and Freedoms in the UK, Klug, F., et al, 3 Blackstone, W., Commentaries on the Laws of Routledge 1996, for a historical perspective. England (15th edition), vol I, p.208, 1809 29 Privy Counsellor Review Committee, 4 Lord Atkins’s statement was contained in Anti-terrorism, Crime and Security Act 2001 a dissenting House of Lords judgment in a Review: Report, HC100, Stationary Office, 18 detention case, see The Times Law Report, 4 December 2003: 5. November 1941. 30 Privy Counsellor Review Committee, 5 Adopted by the Committee of Ministers Anti-terrorism, Crime and Security Act 2001 on 11 July 2002 at the 804th meeting of the Review: Report, HC100, Stationary Office, 18 Ministers’ Deputies. December 2003: 9. 6 See Chabal v the United Kingdom, 15 31 Parliamentary Joint Committee on Human November 1996, reports 1996-V, para 79. Rights, Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 7 A and others v Secretary of State for the (Continuance in force of sections 1 to 9) Order Home Department, [2004] UKHL 56 2006, HC 915, Stationery Office, 20 February 8 ‘Submission from JUSTICE to the JCHR’S 2006: 9. inquiry into counter-terrorism policy and 32 human rights’, 17 October 2005. Parliamentary Joint Committee on Human Rights, Counter-Terrorism Policy and Human 9 Commons Home Affairs Committee, Rights: Draft Prevention of Terrorism Act 2005 Terrorism Detention Powers, HC910, (Continuance in force of sections 1 to 9) Order Stationery Office, 20 June 2006: 46. 2006, HC 915, Stationery Office, 20 February 10 Lord Carlile of Berriew Q.C, Report on the 2006: 9. Operation in 2005 of the Terrorism Act 2000, 33 Commons Home Affairs Committee, May 2006. Terrorism Detention Powers, HC910, 11 Lord Carlile of Berriew Q.C, op cit, p.14 Stationery Office, 20 June 2006: 46. 12 Parliamentary Joint Committee on Human 34 Parliamentary Joint Committee on Human Rights, Review of Counter-terrorism Powers, Rights, Anti-Terrorism, Crime and Security Bill, HC 713, Stationery Office, 21 July 2004: 15. HC372, Stationery Office, 16 November 2001: 13 Ian Macdonald, ‘Why I feel I have no para 29. option but to resign’, Mail on Sunday, 19 35 Parliamentary Joint Committee on Human December 2004. Rights, Anti-Terrorism, Crime and Security Bill, 14 Hansard, HC written answers, 4 Feb. 1991, HC372, Stationery Office, 16 November 2001: Col. 28. para 30. 15 Nick Cohen, ‘Without Prejudice’, Observer, 36 Parliamentary Joint Committee on Human 18 November 2001. Rights, Review of Counter-terrorism Powers, 16 John Major, The Autobiography HC 713, Stationery Office, 21 July 2004, 9-11. (HarperCollins, London, 2000), p.222. 37 Lord Carlile of Berriew Q.C, Report on the 17 Nigel Morris, ‘“Contradictory” evidence Operation in 2005 of the Terrorism Act 2000, used in deportation case’, Independent, 13 May 2006: 2. October 2006. 38 Parliamentary Joint Committee on Human 18 Parliamentary Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights, Review of Counter-terrorism Powers, Rights: Draft Prevention of Terrorism Act 2005 HC 713, Stationery Office, 21 July 2004: 13. (Continuance in force of sections 1 to 9) Order 19 Commons Home Affairs Committee, 2006, HC 915, Stationery Office, 20 February Terrorism and Community Relations, HC165, 2006: 25. Stationery Office, 22 March 2005: 44. 39 Parliamentary Joint Committee on Human 20 Parliamentary Joint Committee on Human Rights, Review of Counter-terrorism Powers, Rights, Counter-Terrorism Policy and Human HC 713, Stationery Office, 21 July 2004: 13. Rights: Prosecution and Pre-Charge Detention,

64 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT Chapter 7 Looking to the Future

Conclusions some high-profile police activity masks action against particular groups of ombating ‘home-grown’ and prejudices an official counter potential terrorists. But they need to be terrorism within the greater terrorism strategy which we find to be introduced with care and consensus dimension of international balanced and sensible (see Chapter after open debate or the fomenters C 4). There is a strong emphasis in this of extremism and terror will exploit terrorism and the US-led ‘War on strategy on reassuring the Muslim them to crank up community tensions Terror’ presents the government communities in order to gain their and stoke anger and frustration. We with a series of complex and fraught trust and cooperation and to convince reiterate the points that the key to challenges and tasks. As we have future generations of young Muslims more immediate success against the pointed out, first and foremost there to cast their lot with democracy and terrorists is good intelligence in the is the crucial challenge of holding the social justice rather than with violence. first place; and that the second stage balance between public safety and We chronicle in Chapter 4 examples of must be to win over those young fundamental democratic liberties and government policies and policing that people in the Muslim communities values. The immediate pressures upon can be seen as building blocks for an who may give the terrorists in their government, not least from the tabloid approach that wins the trust of people midst the tacit or active support that media, quite clearly tilt the balance within Britain’s Muslim communities. they need. against the protection of civil and However, a word of caution is required Government ministers often talk political rights. here. Developing the UK’s agenda for of a ‘trade off’ between security and For the government must in the integration reinforces the perception human rights. But this is a false first instance provide the general that policies that address minority choice. Human security itself is the public with greater assurance of needs are only being developed as a principal human right, ‘the right to security against terrorism. Given the response to extremism and suggests life’, and is the central component of difficulties that the intelligence and that integration is not a two-way the carefully assembled and balanced security agencies face in ‘catching process: rather that the state is not package of civil and political rights up’ in human intelligence – that is, really interested in the concerns and and responsibilities contained in identifying potential conspiracies experience of the Muslim minorities in the European Convention of and, harder still, infiltrating extremist unless it impacts on the majority. Human Rights and other human and terrorist circles – from a standing The rolling out of increasingly rights instruments. The European start, it is very hard for the government wide-ranging legislative powers about Convention, now largely incorporated to acknowledge publicly that it is which even senior police officers are into British law, allows for a most likely that future conspiracies sceptical and the development of a government to restrict some rights in may very well succeed, at least in the shadow, or parallel, system of justice a genuine national emergency. To do short term. Ministers naturally feel driven by the executive cancels out so, it is incumbent on the government a compulsion to be ‘seen to act’ and the positive interest in integration to take out a derogation from those to talk tough when they cannot act and equality that the government has rights and formally and publicly to effectively. Indeed, responses of this demonstrated and the good practice justify that derogation on the grounds kind can be beneficial if people believe that is being developed. The disruptive that the ‘life of the nation’ is under that the government has their security and preventive measures that have threat. There are also suggestions at heart. But ministers need not be so been and are being taken alienate that a particular ‘trade off’ between driven by fear of a political backlash the very communities on whose surveillance and other civil and from another terrorist attack. They cooperation the authorities depend for political rights might represent an suffered no backlash after 7/7 and intelligence. People will be reluctant acceptable compromise since, at least the best way of ensuring protection or wary of reporting incidents or for the time being, surveillance is most against a backlash of this kind is passing on crucial information when likely to deliver the intelligence that to abandon their frankly partisan they or friends or relatives experience is required to prevent terrorism (see approach and return to the earlier unpleasant or worse treatment from Chapter 5). search for the political consensus the authorities or read or see media The actual ‘trade off’ that is around policy that the public wishes reports of brutal, abusive or insensitive occurring is not however between to see. But, as we say in Chapter 4, incidents. It is a commonplace this or that right. It is between the we fear that the recent rhetorical of expert study of terrorism that rights of the majority population stance taken by ministers is counter the state’s own counter terrorism and those of minorities, especially productive and will militate against measures can have a profound effect the Muslim communities. In a very both winning the cooperation of the upon the intensity of the terrorism real sense, and no doubt inevitably, Muslim communities and creating they are designed to combat. This is apprehension of the terrorist threat unity around their counter terrorism not to say that new legislation and has been ‘racialised’. In our view, strategy. changes in police practice may not government statements, like those of Yet the deluge of anti-terrorism be needed, nor even to challenge Home Secretary John Reid, contribute legislation, ministerial rhetoric and the need for early and disruptive to a divide that has been exacerbated

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 65 for some years by Islamophobic be used in terrorist and criminal court actually put at risk the nation’s ability reports and items in the media.1 An proceedings, when it can facilitate to deal rationally, proportionately and important part of the government’s bringing charges against suspects and effectively with the terrorist threat that ability to pass its counter terrorism subjecting them to fair trial within they are supposed to extinguish. laws and developing police practice the rules of criminal justice – and can Human security, as Demos has lies in the idea that these laws clearly be done in ways that would argued, is a participatory project.2 and their enforcement will not be allow the intelligence and security It is especially important, as former employed against Tony Blair’s ‘law- services to protect their operations Assistant Commissioner David Veness abiding’ majority: they will not be used from being harmfully disclosed. has stressed in a Demos lecture, to against ‘us’, they will be used against We have concentrated on recruit ‘unlikely counter terrorists’ at ‘them’. The way that the threat has government laws and practice that community and citizen level.3 But the been ‘racialised’ is key in drawing diminish or remove protections of the rhetoric of all-powerful government this boundary. These measures are liberty of the individual and the right which alone sees and appreciates the possible in part because the general to fair trial. But the restrictions on scale of the terrorist risk (while never public does not feel vulnerable freedom of speech and association can ever quite sharing its knowledge with to being kept under surveillance, have a ‘chilling’ effect on individuals the public) prevents the fuller and watching their words, being arbitrarily as they watch their words or change better informed engagement of civil stopped, searched, raided, beaten, their behaviour to avoid suspicion, society, communities, political parties arrested or shot. By contrast, people and on society at large as they and non-state organisations and in the Muslim and other minority diminish the space for democratic actors. The legacy of the government’s communities do. (It is noteworthy that debate around issues that are best overt counter terrorism policies may the misuse of counter terrorism powers publicly resolved. Given that so little is very well be divided communities has generated the most mainstream known of the manner in which young and diminishing trust alongside the controversy on the relatively rare people are drawn into terrorism, the damage to human rights. There are occasions when it has been directed government’s concern over ‘glorifying even signs from opinion polls, such against non-Muslims, such as the terrorism’ is wholly understandable. as a YouGov poll in August 2006, that stopping and searching of peace But incitement to murder or violence they are not even winning the majority protestors or delegates at the Labour would anyway be illegal under pre- support that they are aimed at. Party conference.) existing laws; and it hardly seems The government’s assumption This process – and the government’s likely that the new provisions will of greater powers is especially Manichean distinction between catch any but the most blatant forms worrying as this is an administration terrorist suspects and ‘the rest of the of incitement (which may be the point, that finds it hard to stand up to British people’ – enables and justifies as it will at least deal with those cases populist pressures. The hostility the removal or reduction of key that provoke tabloid outrage). What to the judiciary is unfounded and protections, such as the presumption is more likely is that debates within constitutionally illiterate. It is rarely of innocence, safeguards against the Muslim communities that need willing to defend human rights detention without charge, the basic to be had will be constrained, as a against ill-founded media criticisms. principles of fair trial, and even the Bangladeshi woman in one of our Given such weaknesses, the level of use of evidence that may have been focus groups describes, while the more public disillusion with government obtained by torture. As we show in extreme and malevolent ‘preachers of and formal politics and the impact Chapter 5, the government’s counter hate’ will retreat out of sight and their of EU membership and globalisation terrorism legislation and practice views will become more difficult to on the social fabric, we ought not to undermine many human rights and challenge. At the same time, necessary accept former Home Secretary Charles weaken the rule of law across a wide engagement between the majority Clarke’s complacent statement to spectrum. Much of the new legislation and minority communities will also be the Home Affairs Committee that we is unnecessary and is expressive rather constrained and the normal processes need not fear that future governments than ‘fit for purpose’. The creation of integration will be slowed or will misuse the greater powers and of the new offence of ‘preparation of narrowed. extensive surveillance apparatus at acts of terrorism’ has been a useful We reiterate our warning – also their disposal. Over the past quarter of instrument for bringing action against voiced by the Home Affairs Committee a century British government has been suspected terrorists and disrupting or – that the government’s approach moving steadily in the direction of an preventing violent conspiracies within to security and counter terrorism authoritarian populist state and no- the criminal justice system early is having a negative effect upon one can be sure of the complexion of enough to protect the public – and also community relations, as well as upon a future government that may inherit for providing a workable alternative frank and open public debate and an ever more powerful and intrusive to more preventive detentions. But political consensus. It is above all state. the offence is widely framed and vital that the government and the The government is in a sense its use requires careful scrutiny. We institutions of the state concentrate a victim of a political system and understand why the intelligence and on getting across the clear message culture that both encourages the cult security agencies resort to surveillance that the terrorist threat does not come of strong leadership and at the same as a means of keeping the immediate from a particular community, but from time subjects that leadership to less menace of terrorism at bay. But we particular individuals. Attempts by institutional and political checks and are concerned that the oversight of the Prime Minister and his colleagues balances than in any other western their surveillance is deficient, and to present themselves as the only democracy. The existence of the most especially about the role that the credible defenders of the public Royal Prerogative gives a government Home Secretary or First Secretary (in against further terrorist attacks and virtually unchallenged discretion Scotland) play in authorising their to denigrate other politicians, judges to make foreign policy. The result activities. At the same time, we are and commentators who disagree is often incompetent government, dismayed that the authorities still with their proposals or who block punctuated by ‘policy disasters’, refuse to allow intercept evidence to measures that infringe human rights among which participation in the

66 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT invasion of Iraq ranks very high. It is true that Bin Laden’s terrorism are actually ‘minority rights’ that It is now widely recognised that pre-dated the war on Iraq; but the unpopular minorities take advantage the wars in Afghanistan and Iraq, war and associated policies anger of. Of course, human rights do seek and Britain’s acquiescence in the Muslims around the world who would to protect minorities, to give them US’s partial position in the Israel- never subscribe to his wider ambitions equality and to prevent discrimination Palestine conflict, have contributed to and critically make some of them against them; but they are also intensifying alienation and extremism sympathetic to violent protest. universal rights that protect basic among Muslims in the UK and the As we have argued throughout this liberties that the British people have wider world. The frustration that many report, a continued commitment to come to regard as their own. The Muslims (as well as many more non- the rule of law and respect for human government did a great disservice to Muslims) experienced over the Iraq rights is integral to a successful its own Human Rights Act when it action was born as much out of anger counter terrorism strategy. We can introduced it almost apologetically about the way the decision to invade only defend the democratic and and omitted to proclaim its virtues was taken as of the recklessness of the open way of life if we demonstrate a and value to the public at large out of decision itself. continuing commitment to its values fear of provoking a tabloid backlash Hazel Blears, while at the Home and practice in the way we actually that has come anyway. Nor did the Office, admirably spent a great deal combat terrorism and improve it in an then cabinet accept the need for of time addressing Muslim audiences inclusive way for all of this country’s a Human Rights Commission to on the need for them to engage in communities. The government’s explain the effects and purpose of and rely upon democracy in Britain counter terrorism laws, policy and the new law. Meanwhile, the new as the proper alternative to violence. practice have to be informed by Commission for Equality and Human But as she complacently recounted human rights canons of equality Rights Commission must immediately at a Royal United Services Institute and proportionality if the police and act against Islamophobia and the seminar on terrorism, she informed intelligence and security agencies damaging divide that is being opened them that they wouldn’t necessarily are to gain the trust in the Muslim up between the majority population get their own way. As our focus groups communities that is essential to the and Muslim communities, by and wider researches show, these successful prosecution of counter government ministers among others, were audiences that hardly needed terrorism in the UK. New laws and and must begin the major long-term that note of warning. Muslims in new strategies of surveillance and task of educating the public in the Britain do not experience British ‘disruption’ may yet be required to benefits to society and themselves democracy as a participatory or even root out terrorism. But they need to as individuals of human rights responsive process that values their be introduced and prosecuted with protections and responsibilities. One views. Quite the reverse. The young agreement, care and sensitivity. recommendation the Commission people who participated in the protest might consider seriously is the marches against invading Iraq (and Recommendations proposal by Rob Beckley, assistant who rejoiced in finding themselves Our principal recommendation on chief constable of Hertfordshire, that a minority on those marches), just as which all else hangs, is that human there should be regular polling to their elders who participated in the rights provide the only appropriate monitor attitudes towards and within government’s Muslim working groups framework for counter terrorism laws the Muslim communities. and who agreed that a full public and practice, as well as for citizenship Terrorism has, in part, social, inquiry into terrorism was necessary, and civil society, public ethics and economic and cultural roots, both felt and still feel that their voices don’t public policy for the diverse population within the UK and internationally. count. Those who preach the merits of of the UK. It is a ‘neutral’ and secular While ‘human rights’ is often taken democracy ought also to examine the framework with a moral content and as meaning ‘political and civil deficiencies in the British model and purpose that reflects and is consistent rights’, there is in fact a continuum of 4 take on board the need for reform. with the most valuable aspects of interdependent rights encompassing Yet Hazel Blears’s voice is not religious beliefs.5 Human rights law the right to ‘equality’ and freedom heard above the shock and awe of the balances civic responsibilities and from discrimination and the full United States’ crusade for freedom obligations with the rights that are spectrum of economic, social and and democracy in the Middle East. protected. The European Convention cultural rights.6 This broader human The government should urgently is often portrayed as an alien, and rights framework would encourage a review its commitment to US policies unnecessary, intrusion; yet it was more comprehensive and principled and practice not to appease terrorists, framed in the first place by British approach to tackling the problem but because they are not in Britain’s lawyers who took Britain’s uncodified of terrorism by the reduction of interests, at home and abroad, as liberties as a model for codified human social exclusion, inequality and well as being illegal, mistaken and rights. Civil and political rights are discrimination. apparently indifferent to the human central to the democratic processes Five main points arise from these deaths, injuries and suffering that they by which the people of the United recommendations: cause. You cannot preach democracy Kingdom can discuss and resolve the at home and set it aside abroad. issues and dangers that the terrorist 1. The rule of law – with the long- The double standards of the US-led threat poses and can frame policies established principle that the coalition, the oppressive nature of and practices that reduce it. Moreover, executive is subject to the rule many of the regimes involved; the the human rights framework would of law – is the bulwark of British UK’s collusion in unlawful detentions, recognise that terrorist acts represent a liberties. Habeas corpus is a vital rendition, and a variety of abuses violation of human rights and that the aspect of the rule of law as it and torture; the disrespect for the state is under an obligation to counter demands that the executive justify international rule of law and human them, but that its response to terrorism the arrest and imprisonment of rights standards undermines the claim should be proportionate. those held in custody. Much of the that the ‘War on Terror’ is being waged We acknowledge that there is a government’s anti-terrorist strategy to spread democracy and freedom. strong feeling that ‘human rights’ depends on preventive detention

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 67 for suspects who are not charged European states within the EU. state’, there is an urgent need for and who are denied a full and fair reforms to strengthen oversight and There will be further counter trial. The government should make to widen the way in which authority terrorism legislation in the next available the resources to place is given for surveillance activities. Queen’s Speech. There have been suspects under whatever form of indications that the government will surveillance is necessary rather 6. The government and Parliament seek to re-introduce its proposal for than keeping them in detention, must accept the need for clearly and 90-day detention without charge for and introduce legal and procedural carefully defined terrorist offences. those suspected of being involved in reforms to facilitate proceedings The many vague and broadly terrorism. . A terrorism consolidation within the safeguards of the defined offences which leave a bill has been promised for 2007 and criminal law, including making great deal of room for discretion so ought to form part of the Queen’s intercept evidence lawful in open are likely to create injustices and Speech. If so, it is likely prove to be court. most important piece of UK legislation generate distrust and the police do since the European Communities Act not necessarily find them helpful. 2. The creation of a shadow or parallel 1972. It must be treated as such. Six system of executive justice and Ministers must abandon their ‘we points: the violation of principles of due know best’ tough-talking approach process to bring about executive 1. All new counter terrorism laws and initiate public debate on human detention or house arrest through and the provisions of a future security and counter terrorism. Their various means, including misuse Consolidation Bill should be limited intolerance of dissent or criticism and of immigration legislation, should by ‘sunset clauses’ and renewable the hardening view that anyone who be brought to an end as soon as only by way of primary legislation. is not with us is against us creates possible. As long as preventive distrust and alienation throughout detention in various forms exists 2. If the government seeks to prolong society. The disproportionate hostility there should be stronger judicial pre-trial detention for more than expressed by ministers to the moderate oversight (as recommended by 28 days, or any form of de facto criticisms of Muslim leaders in the the Home Affairs Committee) and house arrest, it should formally take summer of 2005 and mild reproaches reforms of the SIAC processes a derogation from the European from the leader of the Conservative to improve the quality of SIAC Convention on the grounds of a party damages the quality of political decisions and strengthen the rights serious emergency that is a threat debate and shrinks its parameters at of defendants (as recommended by to the life of the nation as a platform a time when a thorough and inclusive Lord Carlile and the JCHR). for parliamentary debate and debate is essential. The government judicial scrutiny. must also resist any temptation to 3. Intercept evidence should be made pander to resentments against the admissible in court to facilitate the 3. The Consolidation Bill should be Muslim communities. criminal prosecutions of suspects subject to the fullest scrutiny and The ‘home-grown’ bombers were and other means of facilitating the consultation with pre-legislative British, the government must be clear ordinary processes of the criminal scrutiny, possibly by a specially that it is the responsibility of the whole law, as suggested by the JCHR, convened joint committee, of British society to work together to should be explored. including chairs or members from address the challenge of ‘home-grown’ various relevant select committees, terrorism and must avoid rhetoric 4. Racial or religious profiling, with full staff support from the that places the burden exclusively including the discriminatory use Scrutiny Unit. Hearings should be on Britain’s Muslim communities. of stop and search powers – which held around the UK; and evidence Ministers must also cease seeking ACPO concedes are intended sessions should be conducted on- to monopolise the counter terrorism to cause general disruption and line, with viewers able to submit agenda and establish a wide-ranging deterrence, not actually to catch comments on proceedings. public inquiry into all aspects of the terrorists – ought not to form part counter terrorism strategy, as free as of the counter terrorism strategy. 4. The Bill itself should establish a possible from the ‘blame culture’ that These practices depend on single review body on the model of inhibits deliberative debate in the UK. discrimination on a basis of physical the Newton Committee to oversee The government’s Muslim working appearance or apparent ethnicity counter terrorism law and practice groups asked for such an inquiry, but or religion, are not effective, create in place of a single reviewer. The were rebuffed because the government deep resentment and damage the review body should be required feared that it would turn into an trust of minority communities in the to consider and report on counter inquest on the Iraq war. police and other state officials at terrorism within a broad human There is no shared debate, let along airports, ports and elsewhere. rights framework. The review understanding, on what led to the July team would hold open and closed bombings, the roots of alienation, the 5. The United Kingdom should end its hearings and report annually to pathways into violent radicalisation, collusion and participation in the Parliament as well as issuing urgent the weaknesses and strengths of perpetration of human rights abuses reports when required. multiculturalism, the dynamics of abroad, including in Afghanistan majority and minority interaction, and Iraq. Such a decision would 5. The oversight of surveillance of all the significance of Islamophobia and clearly not be cost-free in many types is inadequate and the existing religious difference and the impact of respects and would most likely processes for authorising warrants discrimination and disadvantage. The require a political review of the is dangerously narrow, being left government cannot determine such existing level of commitment to to a single minister or senior police matters, let alone generate support for the Special Relationship with the officers. Given the centrality of its policy responses, on its own. As we United States and reconsideration surveillance to counter terrorism have argued above, securing human of the UK’s relationship with and the spectre of a ‘surveillance security is a participatory process.

68 THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS DEMOCRATIC AUDIT Four points: wider understanding of the processes by which some young people within 1. The process of a public inquiry is those communities are turned towards as important as the outcome or the violence can come about only if they conclusions that it reaches. The are seen to be playing a full part in government’s analysis may well be combating that violence; and that correct but it needs to share that can come about only if they are fully analysis and listen to others. The engaged in counter terrorism plans. state cannot expect co-operation from minority communities without Footnotes also seriously addressing their 1 concerns, A particularly irresponsible example of this was published in the Sun on 7 October 2006, which reported in prejudicial terms while 2. Many of the concerns go beyond following up tensions in Windsor between policing issues to addressing young white and Muslim youths under the the wider social and economic front-page slogan, ‘HOUNDED OUT: Hero disadvantage and discrimination soldiers’ homes wrecked by Muslims’ that individuals in these 2 Briggs, R, Joining Forces: From national communities may face. It is vitally security to net-worked security, Demos 2005 important that addressing such 3 Lecture at Demos, 22 February 2005. issues is disentangled from the 4 See for example, Beetham, D, et al, counter terrorism agenda. Democracy under Blair: A Democratic Audit of the United Kingdom, Politico’s, 2002 3. Ministers should appreciate that 5 Professor Francesca Klug sets out an the lack of trust in their policies eloquent case for this proposal in Values for and state institutions is often a a Godless Age: the story of the UK’s new bill consequence of very different of rights, Penguin, 2000. She is currently experiences of the state, particularly working on a second edition of Values for a for those whose historical Godless Age, which is due to be published by background is in former colonial Routledge in 2007 6 states. See further Weir, S, Unequal Britain: human rights as a route to social justice, Politico’s 4. A key lesson from the Irish 2006 experience is that all organisations involved in dealing with political violence, from the secret services to the units handling public order in the streets, must be independently and democratically accountable. Finally, we endorse the view expressed by ACPO that ‘community’ should have been given its own heading within the counter terrorism strategy. We do so for reasons that go beyond issues of human security. There has been a growing sense of public unease about the rate of immigration into the UK and the impact that migrants have on communities with limited experience of new migrants. One consequence of this unease is the growth of Islamophobia and racial attacks on the one hand, and resentment and signs of retreat and consolidation in some Muslim communities on the other. These tensions can only be resolved by the kind of wide-ranging public debate that we have recommended above; and then effective government policies to promote community and the equality that underpins it in the interests of the majority and minority communities in the UK. The government can only devise these policies for improved community relations if they are based on the participation of those communities. Respect for the contribution that Muslim communities can make and

JOSEPH ROWNTREE REFORM TRUST THE RULES OF THE GAME: TERRORISM, COMMUNITY AND HUMAN RIGHTS 69

The Rules of the Game Terrorism, Community and Human Rights Andrew Blick, Tufyal Choudhury and Stuart Weir Joseph Rowntree Reform Trust

The Joseph Rowntree Reform Trust Limited, founded in 1904 by the Liberal Quaker philanthropist, Joseph Rowntree, is a company which pays tax on its income and is therefore free to give grants for political purposes. It has been doing so since 1904 in order to promote political reform and constitutional change as well as the interests of social justice.

Democratic Audit is a research consortium attached to the Human Rights Centre, University of Essex. We publish regular audits on the state of British democracy. You can find out more about us and our work on www.democraticaudit.com