Is the scope of the Terrorism Act 2000 in the UK much too broad?

Glenn Greenwald’s partner was detained at Heathrow under the Terrorism Act 2000. What is your opinion on the Terrorism Act, isn’t it too broad and can be easily misused then? Or would you say it serve it purposes well? Read few comments.

Paul Arnell, Reader in Law, Aberdeen Business School, Robert Gordon University Aberdeen

The Terrorism Act 2000 is a wide-ranging piece of legislation that criminalises various acts related to terrorism as it defines it. Schedule 7 of which allows the authorities to detain someone they suspect may be involved in those acts at airports for up to nine hours. The definition of terrorism in the Act, if construed very liberally, could be understood to cover the activities of Edward Snowden. That, of course, is not to say that there exists a legitimate basis for questioning David Miranda.

Whilst of course I am not privy to the information the UK authorities hold, I would tend to agree with Glenn Greenwald that the detention is objectively unwarranted.

David Lowe, Principal Lecturer, Law School, Liverpool John Moores University

From a legal perspective, the key to this issue the power given to police /immigration/customs officers under Schedule 7, paragraph 2 of the UK’s terrorism Act 2000. Schedule 7 paragraph 2(1) allows such an officer to question a person travelling to or from the UK  for the purpose of determining if they are concerned in the commission, preparation or instigation of acts of terrorism. Schedule 2 paragraph 2(4) allows that officer to exercise these powers whether or not that officer has grounds for suspecting the person is involved in terrorism. It is this part of Schedule 7, paragraph 2 that is the contentious as the officer does not have to have reasonable suspicion to question someone. As a result this makes it a very wide power indeed.

When you think of the millions that travel through one of the world’s busiest airports, Heathrow in London, then this power will be used on those on whom there may be intelligence (this could be intelligence on the Europol Intelligence System/Schengen Intelligence System as well as UK based intelligence systems) or of course any person who the officers believe is involved in acts of terrorism. Recently one of my postgraduate research students who comes from Pakistan was stopped at Manchester Airport when he returned from Pakistan after conducting research into his thesis that is examining terrorism in Pakistan. When he was asked what he had been doing during his time there, he told the Special Branch port officers he had been carrying out research into terrorism. His laptop and other electronic devices that contained links to terrorist organisations and notes he made on the activities of the various Taliban groups in Pakistan were examined. He was honest in all his replies and the fact I was his supervisor had to be checked out. Ironically, he told them that I was a former Special Branch Counter-Terrorism Unit officer. When I saw him a couple of days later he was still shaken by his experiences.

However, regarding the detention of Mr Miranda in these circumstances Special Branch had an opportunity to check his electronic devices that may have contained the documentation that Edward Snowdon released from his whistleblowing on the activities of the USA’s National Security Agency, as well as the documentation Snowdon passed onto The Guardian reporter, Glenn Greenwald used to write up on the UK’s national listening agency, GCHQ (similar in operation the USA’s National Security Agency). As no reasonable suspicion is necessary, while Mr Miranda was in transit at Heathrow Airport, this was a golden opportunity for the security services and security police to ascertain what documentation was stored on the devices. If they are top secret documents, they are classified as such for a reason and this takes us to another issue, the needs of national security clashing with citizens’ human rights. If sensitive information was on those devices and Mr Miranda was going to Brazil then there was a possibility of this information getting into the hands of those concerned in the commission of terrorism who would find it useful as some of that information may reveal surveillance practices and the capability of state surveillance regarding its reach into the lives of those targeted as being suspected to be involved in the commission of terrorism. Of course one other issue is the freedom of speech of the press and there is no doubt that Edward Snowdon’s actions in revealing how the National Security Agency and GCHQ have been involved in electronic surveillance that has not been authorised has caused both the respective agencies as well as the US and UK Governments a degree of embarrassment. As I am sure Edward Snowdon will have signed the equivalent of the UK’s Official Secrets Act (that I did for both my time as a communications officer in the UK’s Foreign & Commonwealth Office and the UK’s Special Branch Counter-Terrorism Unit and I am still bound by  it to secrecy on a number of issues) Edward Snowdon also had a responsibility not to reveal any sensitive documentation. Obviously I am not privy to what he has revealed, but he has released intelligence documents that potentially compromise the security of the USA and EU Member States. In my eyes Edward Snowdon is a criminal as terrorism, especially preventing acts of terrorism, is not to be taken lightly.

For Glen Greenwald it is only natural that by being stopped at Heathrow and detained for nine hours without charge, he will see this as victimisation of his partner, Mr Miranda, because of his reporting of the news story regarding Edward Snowdon’s revelations to The Guardian. As Sir Brian Leveson said in his report on unlawful practices (in particular the Murdoch Press) and the relationship between the media and police and politicians in the UK, a free press is essential in any democracy as it provides a voice for the weak and vulnerable in society. Therefore it is essential that malpractice is reported, especially where wide powers are granted to state agencies. This was recognised with the  amendments to the USA’s Foreign Intelligence Surveillance Act 1978 by the Patriot Act 2001 by the United States Foreign Intelligence Surveillance Court of Review in the case In Re Sealed Case N.02-001. The Court said these amendments has allowed US federal agencies to bypass the US Constitution’s fourth amendment regarding people being secure against unreasonable searches and surveillance. Therefore any security agency or policing body must act responsibly and within the law, as the concept of the rule of law is paramount in any democracy. In acknowledging this important principle it must also be acknowledged there is also a balancing between what intelligence is about to go into the public domain that can seriously affect the measures a state takes to keeping their citizens secure. We had two examples of that this year in Boston and outside Woolwich Barracks in London.

Are the powers granted to officers in Schedule 7, paragraph 2 too broad with the possibility of being misused? Then I have to say yes there is that potential and that is why it is paramount that those bestowed with such powers must act responsibly and reasonably. However with the millions of pieces of intelligence received by national security agencies  and their resources t still limited in comparison to what is received, it is still easy for a marginal operative or player to escape full surveillance. When that happens then innocent lives are in danger. I also acknowledge the press also have a responsibility to hold government activity to account. With Edward Snowdon currently being granted asylum in Russia albeit for one year, reporters who have had access to sensitive and top secret documents regarding national security must also expect authorities to try to ascertain what that documentation is.

Katja SamuelLecturer, School of Law, University of Reading

More generally, there can be a significant temptation for states to depart from fundamental rule of law principles, including those of international human rights law, when responding to real or perceived security threats (terrorist or otherwise). While it is essential that all governments respond effectively in order to counter very real security threats in order to protect those present on their territory (indeed, they have a fundamental obligation to do so under international human rights law), any such departures from the rule of law are misconceived in that the international legal framework governing human rights protection already makes provision for responding to exceptional situations including security threats to a nation. Any such departures are also counter-productive, whatever short term benefits they may appear to offer, not least in terms of undermining a government’s longer term legitimacy and effectiveness on such matters.

With respect to the UK’s anti-terrorism legislative and non-legislative responses, both prior to and since the Terrorism Act 2000, these have often been highly contentious, criticized, and debated, with many (including lawyers) believing that at least some of its provisions (some now repealed, others still in force) extend beyond the boundaries of what is absolutely necessary as well as permissible within the rule of law. As a consequence, public confidence in executive responses to inter alia terrorist threats has been eroded. Provisions relating to the deprivation of liberty have often featured heavily in these debates (notably here Schedule 7 under which David Miranda was detained at Heathrow Airport), including whether they are justifiable and lawful from a human rights law perspective. Certainly, when one considers the jurisprudence of the European Court of Human Rights on terrorism related matters, the UK is one of the Contracting States to the European Convention on Human Rights whose anti-terrorism responses has been most reviewed and criticized by the Court when compared to many other Contracting States. It is evident from cases involving the UK, both as defendant states as well as when intervening as a third party in other cases, that it is an example of a state that often strains to balance security imperatives against rule of law compliance (including human rights obligations) rather than to accommodate the former within the latter; this can be a slippery and concerning slope, particularly from a rule of law perspective.

Colm O’Cinneide, Reader in Law, University College London

The scope of the terrorism Act 2000 in the UK is much too broad, and this makes it possible for police, immigration and security services to misuse it – as the disgraceful case of Glenn Greenwald’s partner shows. In particular, expert commentary on the Act has regularly highlighted the fact that the definition of potential terrorist activity in the legislation is much too wide.

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One Response

  1. It seems like there was literally no reason for detaining Mr. Miranda (correct me if I am wrong). If this is true, that seems to me that the law is too broad.

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