Thursday, September 15, 2005

A bit of legal pedantry

A quick skim over the draft Terrorism Bill (.pdf) raises a number of concerns. Doubtless there'd be infinitely more were I to read it in full (especially were I to compare it to other anti-terrorism legislation from around the world), but I've got real-world deadlines for things that actually earn me money, so I'll have to leave it to others.

I am, however, somewhat concerned that when you say that anyone who "glorifies, exalts or celebrates the commission, preparation or instigation (whether in the past, in the future or generally) of acts of terrorism"* is committing an offence, precisely what is meant by "glorifying", "exalting" or "celebrating" is left unclear.

I also don't like the idea that "A person is guilty of an offence under this section in respect of a statement glorifying, exalting or celebrating anything occurring more than 20 years before the publication of the statement only if the statement relates, whether directly or indirectly, to conduct or events specified for the purposes of this section by order made by the Secretary of State."**

This effectively wipes from existence any act of terrorism pre-1985 unless Charles Clarke specifically, officially declares it to be terrorism. So the 1984 Brighton bomb which nearly wiped out Thatcher and her Cabinet would - technically - no longer count as an act of terrorism unless the Safety Elephant specifically sets out a statutory instrument*** declaring it so to be. And if he did that, then anyone who ever jokes about it being a shame they missed risks five years in prison****.

It also - again, technically - for the first time creates the concept of "official history" as historic groups who used tactics which could be considered "terrorist" (the Chartists etc.) would now only technically be considered such if they were on the Home Secretary's official list. A perfect cop-out for any history students presented with "Were the Suffragettes' tactics terrorist in nature?" type questions - just put "No - because Charles Clarke says so".

* Part 1, Section 2, Subsection 1(b)
** Part 1, Section 2, Subsection 3
*** Part 1, Section 2, Subsection 4
**** Part 1, Section 2, Subsection 5(a)

8 Comments:

Anonymous David Ellams said...

Here is a further bit of legal pedantry.

Our dear but ignorant legislators have obviously either never read, or forgotten the terms of Magna Carta.
That states that should the monarch break the law, the subjects are obliged to harras him/her until such time as the unlawful behaviour is ended.
No doubt our legislators find that rather inconvenient and will declare Magna Carta as a terrorist's charter.

9/15/2005 09:48:00 pm  
Blogger Nosemonkey said...

David - for more pedantry, erm - this is how much of Magna Carta remains in force, including which statutes/Acts repealed which bits (although the Prevention of Terrorism Act 2005 also removed the right to trial (clause 29), just to update that first link a bit...)

Sorry to break it to you, old man, but Magna Carta never meant anything - until the 17th century when it was used as an excuse to rebel against Charles I (hence no mention of it in Shakespeare's King John). It means even less now.

As much as it'd be nice to think otherwise, the first time anyone in England ever had inalienable rights was when we signed up to the European Charter of Fundamental Rights (and, to a lesser extent, when we joined the United Nations). Magna Carta gave us precisely jack shit other than a convenient shorthand for an idealised England that never existed.

9/15/2005 10:17:00 pm  
Blogger Dr Victorino de la Vega said...

Tony Blair is taking yet another page from the official doctrine of Washington and Tel Aviv’s “New Conservatism”

Retroactive laws are hostile to fundamental legal fairness: no wonder comrade Joe Stalin and his Neocon and “Nouveau Labour” disciples love them

As for punishing harshly those who “praise” and “glorify” actions hostile to the state, well that concept was pioneered by comrade Robespierre in the late 1790s…before the “guillotine” law was eventually turned against those who had fathered it! “The great revolution has devoured its children” said the Parisian crowd…

Ironically, Robespierre and his French revolutionary “camarades” coined the term “terrorism”: in their view, it was meant to define the forceful repressive policies to be used by the “enlightened government” against all its enemies, notably those who praised the “Ancient Regime”

This strikes me as a very visionary definition, especially after having read Charles Clarke’ draft terrorism bill!

9/16/2005 02:05:00 am  
Anonymous Alex Wilken said...

Nosemonkey, you wrote: "I also don't like the idea that 'A person is guilty of an offence under this section in respect of a statement glorifying, exalting or celebrating anything occurring more than 20 years before the publication of the statement only if the statement relates, whether directly or indirectly, to conduct or events specified for the purposes of this section by order made by the Secretary of State.' This effectively wipes from existence any act of terrorism pre-1985 unless Charles Clarke specifically, officially declares it to be terrorism.'

I don't think it's too pedantic to point out that this is rather an awkward misinterpretation. The bill quite specifically doesn't say that nothing before 20 years ago counts as terrorism unless it's identified as such by the Secretary of State. It simply says that nobody can be prosecuted under this bill for glorifying said past acts of terrorism. That's quite a significant difference; it stops you being prosecuted for, say, bonfire night celebrations which might be said to glorify Guy Fawkes's attempts to blow up Parliament. (And indeed for remarks about the Brighton bomb or whatever.)

9/16/2005 10:10:00 am  
Anonymous Alex Wilken said...

Also, Dr Victorino said: "Retroactive laws are hostile to fundamental legal fairness". Agreed, but the new bill contains no retroactive laws. There's no way you can suddenly become guilty of an offence you committed in the past (when it wasn't an offence); the bill simply makes it an offence to glorify present or past acts of terrorism.

Don't get me wrong, I'm probably as uneasy about parts of this bill as the rest of the posters here. But we should be careful not to criticise every single element of the bill just because we disagree with the overall whole.

9/16/2005 10:36:00 am  
Blogger snooo said...

Considering the press' will to accuse even moderate muslim writers or clerics of extremism or supporting terrorism, i've not seen anything that has reassured me that this law will not be mishandled. Sure as eggs, a test case will arise which will result in the law being found to be useless.

9/16/2005 12:28:00 pm  
Blogger Dr Victorino de la Vega said...

Alex Wilken said:

“ Dr Victorino said: "Retroactive laws are hostile to fundamental legal fairness". Agreed, but the new bill contains no retroactive laws ”

Well actually I’m not so sure dude...
Have you really read the draft Terrorism Bill published by Tony’s boys yesterday?

Its totalitarian wording is (deliberately? you bet!) “vague” enough to be construed by zealous judges as authorizing retroactive condemnations of offenders

Recall: we’re in England and the anti-retroactive clauses of (what’s left of) the US constitution simply don’t apply here.

Dr Victorino de la Vega
The Middle East Memo
http://www.mideastmemo.blogspot.com/

9/16/2005 01:11:00 pm  
Anonymous Alex Wilken said...

Dr V - I have read it, but may have missed something. Which clauses are you referring to?

Also, we may not have US constitutional protection in the UK, but we do have the European convention on human rights. Article 7 provides protection against retroactive criminal law; the article is incorporated into UK law, and we don't have a derogation - so unless there is a specific measure in the new bill which conflicts with that (and I haven't seen one), that ought to clear up any possible ambiguities, no matter how vaguely worded it may be.

9/16/2005 01:41:00 pm  

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