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									POLICY EXCHANGE

3 MARCH 2010

Terrorism: Pragmatism, Populism, and Libertarianism - The Inaugural John Creaney Memorial
Lecture

Lord Carlile

Ladies and Gentlemen, I am grateful to Policy Exchange for giving me the opportunity of
speaking this evening on the subject of counter terrorism law and policy. I am humbled
and honoured to be addressing so large, and above all knowledgeable, an audience.
There are here people who’ve lived terrorism at the worst of times. There are two
reasons I’m here. The second I’ll come to, the most important, in a few moments, but
the first is because the Policy Exchange is the home of the most amazing intellectual
energy and I admire Policy Exchange for what it does, whilst of course as a Liberal
Democrat not always agreeing with every word.

It is a tribute to Policy Exchange that they have engendered so much interest in this
event: I have spoken to many empty halls on many occasions in many venues about
fascinating subjects that nobody seemed to be remotely interested in, but last week I
experienced a first in terms of counter terrorism law, in that a rather serious and
genuinely interested journalist, not in itself an oxymoron, from the News of the World
(and I’ll leave it to you whether that is an oxymoron), telephoned me for a trail on
tonight’s Policy Exchange think tank ticket. So well done Policy Exchange.

That particular source of media interest raised a very serious point in my mind, which I
mentioned at the outset, and it is about what I call ‘telling the story’, and I want to
emphasis this particularly in the presence of a number of politicians and indeed the
shadow Home Secretary in particular. Government, the police and the security services
are still more secretive than in my view is necessary, desirable or wise about their
undoubted achievements in countering terrorism. There have been many such
achievements here, in Great Britain, in Northern Ireland and also abroad, involving our
authorities and particularly the security services abroad. The disruption or interdiction
of a terrorist conspiracy saves lives. It also demonstrates what I believe to be the true,
general effectiveness of what are generically called the control authorities in and of the
United Kingdom. It shows national security policy, in this sector at least, to be working.
However, the public know very little about that and if the public are not given a
sufficient degree of information to know of the achievements of the control authorities,
it is all too easy for them to fall or to be led into cynicism about intelligence and its
importance. However, before I stoke the flames of that theme, by which I refer to
cynicism, further, I must say something about the reasons for this particular lecture.



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If I repeat anything that Dean Godson has said, please forgive me. It’s because I want it
to be included in my text and in the full version of the lecture. This lecture, as Dean has
said, is named in memory John Creaney OBE QC. And I too welcome here tonight his
widow Evelyn and their daughters, about whom I have heard some tales out of school
having done my research properly earlier this week.

John Creaney died in June 2008 aged I think 74. He was intimately concerned with
counter terrorism law. He was one of the most important figures in the legal system in
Northern Ireland during the past four decades, one of the unsung heroes of the Troubles
and won the admiration of lawyers from Great Britain who went over there and saw
what was happening there for themselves, like, and I’m delighted to see him here
tonight, Sir Louis Blom-Cooper QC. What he did became extremely serious but he was
like lawyers, great lawyers, should be. He levened the very serious nature of his work
with legendary wit, his jokes are still passed around dinner parties, I understand, in
Northern Ireland and elsewhere, and a love of the turf and a knowledge of the turf
which would do us all proud if we could borrow it. So he was a very rounded and lovely
person.

As a Senior Prosecuting Counsel from 1978 until his death, John Creaney participated in
most of the important terrorism trials at the Belfast Crown Court. His career was unique.
It spanned the gamut of provincial and international terrorism – from the Malvern
Street murder of 1966 (when he defended Gusty Spence of the UVF) through to the case
of Abbas Boutrab in 2005, Ulster's first al-Qaeda trial.

As you’ve heard, his pupils included Brian Kerr, later Lord Chief Justice of Northern
Ireland, and now a Supreme Court Judge and I too am delighted to see him here tonight,
and I’m delighted also to see here his distinguished successor Sir Declan Morgan, and it
gives me the opportunity to say something that lawyers in Great Britain do not say often
enough: The debt we owe to the bravery, to the courage, of Judges in Northern Ireland,
and to hear Lord Mayhew approving what I’ve just said gives me encouragement to say
a little more. I think the recognition of the courage of senior lawyers and Judges of
Northern Ireland needs to be better known among those of us who have a more
comfortable life here in Great Britain.

Now like many of us lawyers, John Creaney had political interests. He was a supporter of
Terence O'Neill, and here I adopt a phrase of Dean’s, so please blame Dean for this, ‘the
moderately reformist Unionist prime minister of Northern Ireland from 1963 to 1969’. I
think it’s a compliment because I’m a moderately reformist Liberal I think. He sought the
Unionist nomination in the Mid-Armagh division at the old Stormont Parliament. He
didn't get it. He warned that times were changing and that Unionism had to adjust. He
failed to be selected and couldn’t resist a joke, saying: "I will make a fortune whilst
everyone is killing each other."

But as things turned out he did himself an injustice. Prior to the Troubles, he enjoyed an
extremely lucrative civil practice and it was a measure of John Creaney that he opted


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increasingly for one of the most dangerous and least well-remunerated, branches of the
law. As you’ve heard, one of his colleagues died. He himself was regularly targeted by
both sides from the Seventies onwards, and was eventually forced to leave his home in
south Belfast, but in his private and public dealings he remained impeccably non-
sectarian. The memory of him and of his activities is very recent in important parts. He
was a key member of the team that successfully defended Toby Harnden, former
correspondent in Northern Ireland of The Daily Telegraph, who risked imprisonment
when he destroyed his notes of conversations with two soldiers who’d been present
during the events of Bloody Sunday. Harnden had done this to protect the identity of his
sources – and for so doing faced contempt proceedings brought by Lord Saville,
presiding judge at the Bloody Sunday inquiry. It was a mark of John Creaney that he
represented Mr Harnden, and I honour his name in giving this lecture.

To set the scene for this speech I should say a few words about what I have been doing
for the past eight-and-a-quarter years. It was entirely by coincidence on the morning,
our time, of the 11 September 2001, I was asked to succeed the distinguished Silk JJ
Rowe QC as Independent Reviewer of Terrorism Legislation. In the middle of that very
first day, in what I was assured would not take up too much of my time, the task
changed out of all recognition. Al Qaeda, suicide terrorism and violent Jihad, until then
had been the study of academic experts and a few prescient journalists and diplomats.
Suddenly, at lunchtime that day our time, it virtually displaced all other forms of
terrorism in the political and public consciousness. Of course it was not new. Some say
we should have seen it coming, for it had been responsible for earlier mass murders in
other countries; but 9/11 in reality brought to an end the period of comfort into which
we had relaxed in the dozen years after the end of the Soviet Union.

What is more, the Cold War had been predictable and symmetrical: the new threat was
unpredictable, asymmetrical, and for the first time brought into our consciousness the
threat and reality of human beings being used as suicide bombs in crowded places.

As the epoch-changing effects of 9/11 were revealed, governments all over the world
were left with a startlingly difficult set of new challenges. I think we should recognise
that there were bound to be mistakes as those challenges were met. One mistake we
must now accept as such were the so-called Belmarsh provisions, which allowed foreign
terrorism suspects to be detained in prison without a criminal trial or even a criminal
charge.

The Executive was left feeling its way, under the sharp supervision of the Courts, and
especially of our particular and highly developed and civilised standards of Judicial
review, of which some very distinguished practitioners are here tonight. But we were
feeling our way, at times as bombs exploded around us and our allies.

International reaction was condign and unequivocal, with the United Nations and the
Council of Europe agreeing a binding zero-tolerance policy towards terrorists. This
included some who were usually regarded as freedom fighters. By that I mean that all


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countries were, and remain, required by international treaty obligations, to prosecute in
their own countries actions falling within the definition of terrorism, however just or
distant (or both) the cause might seem. The only protection from this was, and still is,
the exercise by the Attorney General or the Director of Public Prosecutions of the
discretion not to prosecute even if there is prima facie evidence of a terrorist crime.
There is a whole evening to be spent some time on that discretion. That the discretion is
the backstop reminds us how important the exercise of prosecutorial discretion is as
part of our singular constitutional settlement in this country.

So, what had been at times a frightening but generally comprehensible Cold War was
suddenly replaced by something quite new and shocking: an incoherent terrorist
campaign against dominant world forces and political ideas. And in addressing that
campaign, as I’ve said, we were required by our international treaty obligations to treat
all political terrorism alike.

The participation of the United Kingdom in the events which followed, including those in
Iraq and Afghanistan, and the continuing difficulties emanating from a range or regional
conflicts, some led by heretical Islamist ideology, have meant that this country is in the
front line. We stand, or are perceived to stand and it doesn’t matter very much, at
America’s shoulder. As a result, we are part of the focus of the anger of Al Qaeda and its
lose co-fraternity of like-minded groups and people. The events of the 7 and 21 July
2005, here in London, demonstrated that very clearly and shockingly, as have attacks on
British assets abroad.

Jonathan Evans, the Director General of the Security Service MI5, like his predecessor
Eliza Manningham-Buller, has stepped occasionally into the public arena, and helpfully
so, telling the story. It does help.

In January 2009 Mr Evans told the media that 2,000 terrorist suspects in Britain were
the subject of what he called intensive scrutiny. He said, “The strategic intent of the al-
Qaeda core, [based] in Pakistan, is to mount attacks in the United Kingdom, and their
model is to use British nationals or residents to deliver the attacks.”

At the time, in January 2009, Jonathan Evans was actually reasonably optimistic. As he
put it, in the 18 months before that date there had been fewer cases where terrorists
had moved from facilitating and supporting terrorism to planning actual attacks. He
spoke of the 86 successful convictions since January 2007, of whom approaching half
had pleaded guilty, and of the chilling effect of convictions and interdictions on the
networks. This implied a resilient reduction, by the authorities, of terrorism in the UK.

Unfortunately, since then, the determination and efforts of violent Jihad have continued
undiminished. MI5 is bigger and busier than ever. The threat level has been increased to
severe, and that is not a political act. Rather, it is the security equivalent of the Bank of
England’s monetary committee: a large group of multi-disciplinary terrorism intelligence
analysts look at the full range of open and closed sources of information, unsurprisingly


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including some intelligence shared by other countries, and provides an assessment
accordingly. We ignore their assessment at our peril.

The up to date statistics tell the story. In the year 1 October 2008 to 30 September
2009, 29 terrorism-related trials were completed. 86% of the defendants were
convicted. If arrested for terrorism-related offences, a suspect was more likely to be
charged than persons arrested for other indictable offences. Yet despite these successes
there remains a group of individuals about whom intelligence and investigation speaks
of their terrorist intent. That is the current assessment.

Now to state the obvious, in this country a General Election is about to happen, and I
want to devote this opportunity to provide, in relation to the background I’ve given,
what I hope are some non-partisan thoughts, sadly perhaps even vain hopes, as to the
way in which all political parties, pressure groups and other NGOs should approach that
assessment, and the terrorism threat generally, especially in the coming hyperactive
segment of the political cycle.

My essential thesis and message is actually one from Northern Ireland. It is that
terrorism is best addressed outside the raised temperature of the hothouse of electoral
and divided politics. I’ve been a Member of Parliament and very much involved in
campaigning over the years, so I hope I say this correctly and will not be contradicted,
but sometimes in elections a form of creative insanity descends on all of us involved in
political campaigning. Grey becomes black and belief becomes passion. That is a form of
debate more suited to the future and form of public spending, where there are clear
choices, than to the fundamental protection of the public from politically or heretically
religiously motivated carnage.

On my 14th birthday my godmother, a wonderful Lancastrian pioneer of female
industrial safety called Bessie Blackburn, well worth a Google, gave me a small volume
of poetry. It contains a two line poem by a poet called George Jeffreys, an 18th century
figure whose obituarist described him as having passed most of his life at leisure in the
houses of his relations, the Dukes of Chandos. It sounds alright, doesn’t it? Perhaps two
lines in an anthology published 200 years later are a testament to the power of thinking
at leisure! Analogous to my view that much of the current debate on terrorism in this
country does little justice to the work of the police and the security services, he said:

       “How ill the motion to the music suits!
       So Orpheus fiddled, and so danced the brutes.”

Here the motion of politics, sometimes ill fits the orchestrated efforts of the authorities.

In order to have a serious debate about terrorism, I think we must do greater justice
than we do to the work of the control authorities. To achieve that, we need a clearer
understanding of what national security is. In my view even some of our most respected
commentators and politicians do not understand what national security is. National


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security is not, or should not be, some stock phrase trotted out by defensive Ministers
to defend the misdeeds of government agents or the unwelcome diktat of Judges from
time to time. That kind of approach trivialises something profoundly more serious.
National security is in truth a shorthand; a shorthand for the aggregation of 60 million
individual liberties – that each of us should be able to go about his/her daily life free
from the risk of violence, but equally that this should occur without the State arbitrarily
and unfairly interfering with important cherished rights, such as for example the
freedoms of speech, worship and movement. Achieving the balance implicit in that
analysis is no simple task, I can tell you. It’s what I’ve been examining as Independent
Reviewer of Terrorism Legislation these past eight years.

Of course, all mainstream political parties possess an honourable desire to protect
national security and the rights of the individual. My theme in no way is intended to
imply otherwise. As I’ve said, I was an elected politician and from observation and
experience I deplore the currency that holds that they are merely out to look after
themselves, but that does bring me to my theme. My central point tonight, as I’ve said,
based on experience in Northern Ireland, is that a new sense of unity is required if
government of whatever persuasion is to deal seriously and constructively with the
threat I described earlier. In most of the years of the Troubles in Northern Ireland, and
indeed now at a time of growing dissident Republican activity there, all political parties
in Great Britain ( and in reality the parties in Northern Ireland too) have shown a shared
resolve and political sense. It worked, and we should learn from that.

There are, by the way, three strands of terrorism that currently threaten the internal
peace of the country. It’s not a one-stranded affair. The first is founded upon Ireland.
The second, which I suspect also commands a multi-partisan approach, is the increasing
but real threat of right-wing extremism exemplified by groups with fearful names like
The Aryan Strike Force and The Wolfpack.

The same cannot be said of the approach of politicians and NGOs to violent Jihadists –
who beyond doubt and by a quantum difference, represent the greatest of the threats.

The battlegrounds for political disagreement have been ill-chosen in my view. I speak for
example of Control Orders, which are very topical because they’re being debated almost
as we speak in the House of Lords. Control Orders apply currently to only 11 individuals,
several of them UK citizens. As Independent Reviewer I have recommended that the
number of controlees could be reduced by a lower level system of travel restrictions for
a few of them. However, it remains my view that the four following points are
completely valid:

First, there is a small cohort of people who against whom there is robust intelligence
that they are involved in or near to active terrorism, but in relation to whom that robust
intelligence cannot be converted into courtroom evidence.




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Secondly, and this has been a severe irritant to me, none of the ‘silver bullet’ solutions,
such as intercept evidence or post-charge questioning, go anywhere near bridging the
gap between intelligence and conviction by a jury. It is simply misleading to claim that
they do.

Third, that the Courts have the capacity to protect controlees from wrongful and
arbitrary action by the State, as the results of several control order cases at various
jurisdictional levels demonstrate.

And forth, the system we have in Great Britain of Special Advocates (in England and
Wales certainly) has worked well to provide solid protection to controlees. Although it is
not a perfect system, and might be improved as a result of well-observed experience,
the difficulties suffered by special advocates are no greater than the problems of
disclosure and evidence-gathering experienced in most criminal and civil jurisdictions.

Nobody likes Control Orders, not least the civil servants and police who have to
administer them. I do not like Control Orders as Independent Reviewer. I have visited
some current and former controlees in their homes and I am of the view that
improvements could be made to the system, especially as it applies to those who have
been made to live a distance from their extended families and home neighbourhoods.

All suggestions of alternatives to Control Orders have been listened to carefully but it
hasn’t taken long, for there have been very few suggestions of alternatives and none
have been remotely realistic. The only real alternative to Control Orders is no Control
Orders. The consequence of no Control Orders would be that is that potentially
determined terrorists would remain uncontrolled. Surveillance may fill some of the
gaps, but the resource intensiveness of surveillance, of whatever kind, means that the
cover will be very limited indeed.

Given the decisions of the senior courts on disclosure of information to potential or
actual controlees, there are now potential terrorists of a type who could come well near
the top of Jonathan Evans’s list, who are already walking the streets relatively
uncontrolled, certainly watched far less than is in the public interest. Let me be
absolutely clear what I mean about that. Decisions by Judges, no doubt on legal
principle and with their eyes open, have meant that there are people now not subject to
Control Orders who were, and who represent a danger to the public. That’s no criticism
of the Judges, it’s an application of the law and it’s not a happy situation.

I could spend another evening on a discussion about the declining, as I see it,
understanding by the Executive of the Judiciary of the Executive, a situation which does
no good either for national security or for the quality of legislation. I do believe that
whatever systems or arrangements existed in the past for the Executive and the
Judiciary to understand one another, outside the heat of the courtroom, no longer exist.
Some of those mechanisms may have been too informal for comfort and for the modern
taste, but I must say that I am surprised that the Judicial Studies Board and the Senior


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Judiciary have been resistant, for they have, to the idea of Judicial Studies Board
seminars to increase that understanding. And I am speaking not of the Binyam
Mohamed case, either specifically or at all really. It has a long way to go and I just want
to emphasise that it’s very particular in my view, there was already extensive disclosure
in the United States in that case, but I think something that I would foresee, perhaps
connected with the Binyam Mohamed case, is further litigation about the relationship of
national security to disclosure of evidence.

And my suggestion, that it is now time for all political parties and the NGOs, who of
course play an important and necessary role in political debate, to enter a new period of
reality. Some, especially the NGOs, must be prepared to put the national interest before
their instinctive preferences; otherwise their legitimacy as rounded organisations
operating in the national interest will be placed in doubt.

I am not asking for a sacrifice of principle; but I do ask for principles to be considered in
the real light. To be unrealistic is also to be irresponsible. Indignation at what seems
unpalatable is no substitute for achieving that vital legitimate balance between the
paramount interest we share in the liberty of the individual, and the limited restrictions
that can properly be placed upon unlimited liberty to achieve the greater public good.



What I have expressed is not a piece of Neocon thinking. Nor is it simply pragmatism. I
worry daily about the reaction a major terrorist atrocity might provoke. I want us to
have available laws that would not have to be changed in such and event. I am looking
for a genuine atmosphere in which we can avoid a reactive response to future critical
events, a response that could conceivably include internment, which we have seen in
my adult life; or the shame of an almost entirely arbitrary system such as the notorious
Regulation b, which functioned during the Second World War and was described by
Churchill as being “in the highest degree odious”.

The second area in which in my view we should seek to remove the issue from the
political battlefield and seek cross-party consensus, relates to detention before charge.

To adopt George Jeffreys’s metaphor, in no part of the debate has there been so clear a
disparity between the tunefulness of ‘Orpheus’ and ‘brute politics’.

The police had an opinion on this subject – not an entirely consistent opinion it has to
be admitted, especially among the cohort of the retired. However, the Association of
Chief Police Officers, ACPO, had a declared view. It was stated briefly, and could not
have been clearer and I summarise it as follows. There can be envisaged a very small
number of cases in which the arrests perforce occur so early, and the challenges to
speedy investigation are so great, that 28 days detention before charge may well not be
sufficient. The consequence might be that a small number of very dangerous terrorists
or potential terrorists would be released to continue their activities, either here or


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elsewhere in the world. Now that view may be right or wrong, but it is worthy of
discussion because of its police source, if for no other reason. The police are the day by
day practitioners. Yet the then Chairman of ACPO was excoriated by some political
figures for his temerity in expressing an opinion publicly. He was allowed to have an
opinion but not to express it publicly, on the grounds that he was trespassing in the
political arena. At the same time NGOs and pressure groups, necessarily lacking the
police’s detailed knowledge of the terrorism scene, were (rightly I emphasise) given free
rein to express their views within what became a sweating political atmosphere. Among
their arguments, indeed at the forefront of their arguments, was that the police would
treat the maximum permitted number of days as the norm, because the police are like
that, aren’t they? That was roughly what it amounted to.

But I respect entirely that Parliament has the right, even the expectation, to establish
maximum periods in such circumstances, and 28 days is what they set. However, the
basis upon which they set it has been proved to be completely incorrect. In fact, the
police have not used anything over 14 days in the past three years, and the Courts and
the Crown Prosecution Service (notably, within the past year in an operation generally
known as Operation Pathway on which I published a separate report) have been
assiduous in their approach to well established Common Law principles governing
arrest, and information to be given on arrest, to ensure that proper control is exercised
when needed.



The result of the fractious and irritable political debate, viewed empirically, was, I
emphasise, to leave the possibility that a most serious terrorism event in the future will
remain unresolved because of a lack of shared political nerve.

I use this not as an argument for changing the law again – I recognise that there is little
prospect of that save as an over-reaction to a terrible event – but it is an example of
how public policy can be determined more by mood than merit.

As my favourite poet, Gerard Manley Hopkins, said in his catchily entitled poem, the title
That Nature is a Heraclitean Fire and of the comfort of Resurrection (snappy title, eh?).
He said:

       “Man, how fast is his firedint, his mark on mind, is gone!
       Both are in an unfathomable, all is enormous dark
       Drowned.”

Nowhere should reason give way to passion, to “firedint”, less than in relation to
counter terrorism law. Yet it did in my view, in the debate on detention before charge.

A third example of an area where a multi-partisan approach would serve us better than
political conflict is connected with the so-called PREVENT strand of the government’s


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CONTEST strategy against terrorism. There was a deep debate, sometimes disagreeable,
about this strategy within government, and not a little controversy. The PREVENT strand
will continue to require some very brave decisions in the future.

PREVENT includes the disposal of substantial resources in a determined event to
counter domestic radicalisation. Now contrary to some of the stories we read, relatively
little radicalisation towards violent Jihad now takes place in Mosques. The vast majority
of British Muslims deplore violent Jihad and as a result radicalisation has been driven
underground into small cliques and cells, meeting in the utmost secrecy and difficult for
the authorities to discover. Using the considerable resources available for PREVENT to
counter these cells is of course well outside the normal experience of public spending.

I suggest that all politicians should agree now with NGOs that we need to be prepared
to take some risks with that funding stream. It may even on occasion find itself being
misused. However, if the money for PREVENT is to be effective it should not be simply
another centrally or municipally directed initiative, useful though those channels are.
Muslim communities themselves should be at the heart of PREVENT. I have seen and
heard of good examples of small scale but effective community action, for example by
Muslim mothers and wives. Community groups should be begged to bid for the funds,
so that they can be used to effect at street and community level. Some of this money
could usefully be directed too towards ensuring that members of the public who donate
to charities do not later read that their contributions are being put in part to funding
terrorism elsewhere in the world. That is occurring; there was yet another story about it
in yesterday’s Daily Telegraph and there is plenty of international evidence to show that
it is.



As part of this partnership with the Muslim communities, all political parties, in my view,
should now share the recognition that stop and search powers under section 44 of the
Terrorism Act 2000 are basically counter-productive. Nothing fills my in-tray and inbox
more than complaints about the use of section 44, which permits stop and search in
areas permitted by the Home Secretary, for the prevention of acts of terrorism.
Whereas section 43 allows a search of a person whom the officer suspects is a terrorist,
section 44 requires no such suspicion.

In the year to 30 September last, 200,444 stops and searches took place under section
44. 124 took place in the whole of Scotland, and 151,627 took place in the Metropolitan
Police Area. Over 85% of them were carried out by the Metropolitan Police and the
British Transport Police. They resulted in zero arrests for terrorism offences, and at most
morsels of counter-terrorism intelligence. About 10% of individuals stopped and
searched under section 44 were Asian or Asian British. During the same period the
Metropolitan Police carried out 1,896 stops and searches with suspicion under section
43, of which about one-sixth defined themselves as Asian or Asian British: the majority
were white.


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It is fair to point out that the sheer number of stops and searches has decreased
dramatically in the past six months or so, and that the geographical areas covered by
section 44 authorisations have been reduced considerably.

Nevertheless the fact remains that the power given by section 44 has caused, and
continues to cause, a disproportionately bad effect on community relations, with the
often inaccurate but genuinely felt belief that it is used in a discriminatory way. It has
certainly been used in some instances without reason, let alone suspicion.

Perhaps most significant is that it has now been held unlawful by the European Court of
Human Rights. The government has asked for permission to appeal, but even if
permission is given, and it’s quite a big if, the appeal is far from certain of success. We
must work on the assumption that the decision will be affirmed, and that section 44 will
be held unlawful.

Unpalatable though it can be to find that our hallowed domestic jurisdictions can now
find themselves overruled by international courts of sometimes variable judicial quality,
that is where we are.

I suggest that there should be a political accommodation now between all parties for
the repeal of section 44 in its present form, and for its replacement early in the new
Parliament by a much restricted power made compatible with the European
Convention. That power should be designed, and is needed, to allow the police to deal
quickly and practically with 3 situations:

First, critical terrorism incidents, such as when searches and/or arrests are taking place
under other powers in the Terrorism Act 2000.

Second, a necessarily closed (that is to say secret) list of premises properly designated as
critical national infrastructure.

And third, truly iconic events at which the risk of terrorist crime is assessed as at least
severe.

If the law were changed in this way, it would be reasonable to expect a considerable
increase in the use of section 43, on suspicion. However, that test of suspicion is more
familiar to police officers, more accountable, more capable of testing in court and more
acceptable to the public.

If the parties cannot agree on a shared agenda for counter-terrorism, each of them, and
the interested NGOs, will be failing in a duty that in my view they owe to the public and
to the Parliament, to do more than merely oppose.

In passing, I would add too that they owe a duty to avoid what I call the pragmatic
incrementalism that has been the driver of some legislative changes – often
shorthanded as “something must be done”. They also owe a duty to tidy up the


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Parliamentary scrutiny of the intelligence services. I accept that parliamentary scrutiny
cannot be completely transparent, but it can be completely accountable and I believe
that the establishment of a subcommittee of vetted senior Privy Councillors of the
Intelligence Services Committee would provide that level of accountability, because they
would be able to see everything.

At the very least those who govern us and lobby government possess a duty to set out a
comprehensive template of their approach to the protection of national security, that
aggregate of individual freedoms I referred to earlier. Nothing less will do. By the same
token, if any NGO thinks that they need do no more than act as the gadfly on these
issues, in my view they should think again.

John Creaney, and people like John Creaney, have risked their careers and even their
lives in the careful, honourable and objective prosecution and defence of terrorism
suspects and in the pursuit of better law. John Creaney stands as a symbol but many are
not major figures like John Creaney; they are the civil servants who put policy into
effect, the border officers who stand at passport and customs posts, and the police
constables who stand in the front line.

It is to those people that we owe our bounden duty to give what is needed, and not to
count the often ill-perceived political cost. It would be an appropriate recognition of
their work and good sense if difference were put aside and the political parties at least
were to sit down together with a clear commitment to the sort of multi-partisanism that
in the end served Northern Ireland’s people well.

<Transcript ends>




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