IHRC’s head of Advocacy, Abed Choudhury, briefly explains why no-one should be surprised at the Court of Appeal’s decision in the Palestine Action case.  Human rights activists and lawyers need to understand that the issues unfolding before us are structural and systemic.  Without the understanding that it is the law and the politics behind the law which are at issue, and that none of this is new, cases such as that of the Filton Four and Palestine Action will continue to arise.

I have come across various reactions to the Palestine Action decision: that it is corruption, that it represents an inversion of the role of judges as guardians of our civil liberties, that it is anti-democratic, and so on.

The problem with all of these viewpoints is that they miss the point of the legal system. The judiciary may be institutionally independent, but it cannot be independent of the legal framework it is tasked with enforcing. Judges are still required to apply the laws passed by Parliament.

The current decisions were inevitable once the legislation was passed and the definition of terrorism established – the legal framework for these decision. In 2005, the IHRC stated in its report British Anti-Terrorism: A Modern Day Witch-hunt:

“It is important to note that the definition of “terrorism” used in the legislation is that incorporated from the Terrorism Act 2000. This definition is extremely broad and vague and potentially outlaws any type of political activism: “For the purpose of advancing a political, religious or ideological cause”, the use or threat of action “designed to influence a government or to intimidate the public or a section of the public” which involves any violence against any person or serious damage to property, endangers the life of any person, or “creates a serious risk to the health or safety of the public or a section of the public, or is designed seriously to interfere with or seriously to disrupt an electronic system.” However, neither the public not the government need necessarily be British. The public may be the public of any country and the government may be the government of any country. There is no requirement that the government should be of a democratic country. Even lawful political movements and lobbying aimed at removing brutal dictators such as Robert Mugabe or Muhammar Qadhafi could be covered by the definition. Once the Home Secretary reasonably believes that an individual falls within this definition, he may be certified as a “suspected international terrorist” and subjected to all the consequential measures.” (pp. 14–15) [Emphasis added]

 

On proscription, the report warned:

“Due to the broad definition given to “terrorism”, this is an extremely dangerous development as it opens the door for non-violent groups to be proscribed for defending the right of resistance under international law.” (p. 19)

It also noted:

“Both the wide definition of terrorism and the vagueness of the grounds for proscription could lead to this being abused to shut down legitimate protest organisations. Proscription occurs without a case being proved in court. The organisation does not get to defend itself against the proscription. It can only appeal against proscription after the fact. Thus, the Home Secretary can in effect criminalise the members and supporters of an organisation without even having to prove any wrongdoing on their part.” (p. 56) [Emphasis added]

The problem is not the judicial/legal system itself (well not primarily). Courts are there to uphold the law, and if the law criminalises certain conduct, judges will generally apply it.

The problem is the primary legislation. It was deliberately drafted in broad terms to grant the government as much discretion and power as possible. At the time, the government argued that such powers were necessary and would be exercised carefully. Many activists and commentators particularly within Muslim communities, did not believe those assurances, and they were right to be sceptical.

We now have politicians willing to wield those powers aggressively to silence dissent, and yet we act surprised. But the power was always there. More importantly, it was always being used, just primarily against communities whose experiences were ignored, dismissed, or treated as politically insignificant. What is new today is not the existence of these powers, but the growing visibility of their application beyond those communities that first warned about them.

The solution, as argued in the report, is straightforward:

“The existing legislation should be repealed and terror suspects prosecuted under pre-existing criminal legislation through the normal criminal justice system. The government should define a set of offences which are characteristic of terrorism and for which it should be possible to prosecute without relying on sensitive material, but that it raise the potential penalty where links with terrorism are established.” (p. 111)

Terrorism isn’t a separate species of crime, it is murder, criminal damage, kidnapping, etc., and should be treated as such under standard criminal frameworks. If an act is deemed terrorism, then increase sentencing tariffs accordingly. What we do not need is a sprawling regime of laws that hands the government sweeping powers to suppress civil liberties under the guise of security, often without the safeguards and protections afforded to the accused under normal criminal procedures. The PA / Filton cases illustrate this very well. 

The government wants us to believe we live in a liberal democracy, even as it has been surreptitiously adopting the legal frameworks of dictatorships. If you think the judges are the problem, then you have accepted the government’s narrative and are failing to see how the anti-terror legislation has been eroding our civil liberties long before this decision, and it will continue until those laws are challenged and repealed.

If the PA decision upsets you, the solution is not to demand that judges become better at applying anti-terror laws enacted by Parliament. The solution is to demand politicians stop eroding our rights through these draconian legislations.

Abed Choudhury heads IHRC Advocacy, where he focuses on challenging discrimination, political repression, and human rights abuses through strategic advocacy. With over a decade of experience, he has supported marginalised communities and made submissions to international bodies including the UN and the International Criminal Court. He is also a Director at IHRC Legal and can be found on LinkedIn @AbedChoudhury.