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Coalition faces first test on human rights

Paul Donovan weighs up what the review of the Prevention of Terrorism could bring

The news that the coalition government has announced a review of anti-terror legislation including 28 day pre-charge detention offers hope for a return of some basic human rights.

The announcement was made to coincide with a decision to extend 28 day pre-charge detention for the six month period. A debate on renewal under the Prevention of Terrorism Act had to be undertaken by 25 July 2010.

The review will also include control orders and reform of Section 44 stop and search under the Terrorism Act 2000. The outcome of the review will be a real test of the coalition government’s colours regarding human rights. It follows on a Labour Government which was one of the most authoritarian in recent history.

To find the antecedents of 28 day pre-charge detention requires going back to the Guildford and Birmingham pub bombings of 1974. The first Prevention of Terrorism Act was introduced following the Birmingham pub bombings. Described by then Home Secretary Roy Jenkins as "draconian" this piece of legislation brought in seven day pre-charge detention. One of the first people detained under its provision was Paul Hill of the Guildford Four, so it had a good record for entrapping the innocent from the off.

It was subsequently used over the years to detain hundreds of thousands of people at the ports, airports and beyond. The detention period could be anything from an hour to seven days. Some 86 per cent of people were released without charge. The way in which the PTA was used effectively made a suspect community of the Irish. It also had the effect of stopping people getting overtly involved in the politics of the North.

The PTA came up for renewal each year. In the early 1980s the Labour Party changed to opposing the renewal, only to later abstain when Tony Blair took over as shadow home secretary in the early 1990s.

The next major change for pre-charge detention came in 2000 with the passing into law of the Terrorism Act. At a time of unprecedented peace, pre-charge detention was extended to 14 days. The timing of this move coming as it just as the peace process was underway in the North and 9/11 had yet to happen, proved to many that anti-terror law had little to do with preventing terrorism and everything to do with cutting back on human rights.

After 9/11, the government made an even more audacious grab for liberties bringing in the Anti-terror crime and security act which allowed for the indefinite detention of foreign nationals if they were felt to pose a threat to national security and could not be deported.

In 2004, the law lords ruled this legislation to be unlawful, resulting in proposals to bring in control orders and 90 day pre-charge detention.

A mighty battle raged over the 2005 Prevention of Terrorism Act resulting in the creation of the control order regime and agreement to 28 day pre-charge detention. The Blair government was defeated over 90 day pre-charge detention. There was a further attempt to up pre-charge detention in October 2008 under Prime Minister Gordon Brown failed due to a combination of opposition and the overwhelming effect of the financial crisis.

Human rights organisation Liberty point out that no one has been held for longer than 14 days since October 2008.

Liberty also point out that Britain has the highest level of pre-charge detention in the western world, with the US and Spain having two days, Italy four days and Spain five days. "Six months in Whitehall passes a lot quicker than 28 days in a police cell without knowing why. The Coalition has bound itself together with the language of civil liberties. Now it must reduce the longest pre-charge detention period of any western democracy," said Shami Chakrabarti, director of Liberty.

How the Coalition government deals with the issue of control orders will be another test of its mettle on civil liberties. The Conservatives and Liberal Democrats both opposed them in opposition. Then Liberal Democrat Home Affairs spokesman described control orders as “pure kafka” and “an affront to British justice.”

Liberty describe control orders as allowing “suspects to be indefinitely tagged, confined to their homes and banned from communicating with others without police interview, charge or trial.

“The effect of this legislation is that some people have been subject to detention and community punishment for over seven years on the basis of the Home Secretary’s suspicions and secret evidence which the suspect will never see.”

Concerns over backtracking by the new administration have surfaced with the revelation that two new control orders have been imposed on the Pakistani students Abid Naseer and Ahmed Faraz Khan. These two men won their appeal against being deported to Pakistan after no charges were brought against them relating to an alleged terror plot. Though the appeal was won the adjudicating body the Special Immigration Appeals Commission effectively branded them terrorists.

Three other control orders have been renewed bringing the total in force to 12. It will be interesting once the review is complete to see if control orders are banned and the paraphanalia of secret evidence the surrounds their imposition outlawed. Liberty are also submitting to the review that phone tap evidence should be admissible in court so making it easier to bring cases to court.

The Coalition Government’s review offers hope of a rolling back of the anti-terror legislation and a restoration of liberty. However, a more cynical individual might suggest many of the most pernicious elements of these laws like control orders and 28 day pre-charge detention will simply be repackaged under new names or made “more accountable.” It would certainly be a rare thing to see a government giving back real liberty, after so many others having chipped away at this edifice for so long.