A tricky balance-part 2
This article follows on from A tricky balance, part 1
So where should a free society draw the line in responding to the terrorist threat?
^ TOPA fair response
The first point to bear in mind is that the aim should be a fair response. Muslims generally (and I am not talking about the views of a small number of self appointed so-called representatives) must see the response as firm but fair. This is not political correctness but a key part of any hearts and minds strategy. Most Muslims will not want to be pitted against everyone else as a by-product of a jihad pursued by the militant minority. Like everyone else, they also do not want to be blown up as they go about their daily lawful business. At the same time they must feel confident that the response is about combating terrorism and fanatics by all means possible, not about having a go at Muslims.
^ TOPInternment is not acceptable
This is one reason why internment or detention without trial cannot be acceptable. It did not work against the IRA, and it will not work now. Inevitably lots of innocent people would be locked up. At the same time this will be a recruiting card for yet further extremists. Imagine the person who is considering passing information to the security services about a person, perhaps a relative or a friend, who they fear is about to perpetrate an outrage. If they think the effect will be that they are locked up whether they are guilty or not, they will be much less likely to provide information. Everyone must know that a system of justice still operates.
^ TOPThe legitimacy of jury trials
Likewise trial by jury confers a legitimacy which judge only trials lack. It shows that justice is for the people, and the general public and not just lawyers are involved. In practical terms, although lawyers would know that judges would not just convict suspects because they thought the government wanted it, it is much easier for fanatics to successfully persuade the community at large that this might be what is happening. As has been recently rightly said by the Home Secretary, terrorists are criminals. We have a well-developed criminal justice system, and that is what should be used.
^ TOPEfficiency
As long as they do not blindly and slavishly ignore all possibilities, terrorism investigations should be able to proceed without fear of criticism for targeting certain religious or racial groups. Christians, Hindus, Buddhists or Jews are much less likely to be carrying bombs than Muslims. Having said that, terrorist groups will obviously seek to use people who might not be obvious suspects, such as converts whose conversion might not show up on documents. The watchword must however be efficiency. If and insofar as profiling helps then it should be used.
^ TOPDifficult policy decisions
Whilst the courts must seek to protect safeguards, Judges are not in a position to consider intelligence reports, appreciate potential political outcomes and make policy decisions. For example the appointment of Lord Carlile of Berriew QC as the independent reviewer of British anti-terrorist laws was a positive step. A respected lawyer and politician (as a former Liberal Democrat MP not a governing party appointment), such an appointment gives a useful balance. It allows an independent figure to consider whether certain proposals are justified. I think that more than one person should be involved, because however eminent that person is acceptable policy cannot rest on their say-so alone. I would suggest that reviewing committee should have seven members, all of whom should be trained lawyers (whatever else they have done), none of whom should be members of the political party in government. If legislation which for example interfered with human rights was proposed, then if it is approved by at least five members of the independent committee (based on the secret intelligence information that they receive) then there should be a strong presumption in favour of the courts enforcing the proposed changes. It must still ultimately be for the court to decide, but the courts must appreciate that there are many factors that they are simply not in a position to know. Striking down legislative responses to the threat willy-nilly is more likely to lead ultimately to more draconian legislation than would have followed from a measured response.
In particular flexibility about surveillance and admissibility of evidence should be allowed. Including taking steps necessary to protect the secrecy of how the information was acquired. Where foreign nationals are concerned, exclusion from the United Kingdom on security grounds should override all other considerations.
^ TOPA free society
The aim must be a free society which does not just abandon the principles of its criminal justice system. However unless a realistic approach is taken to helping keep that society safe, ultimately successful terrorist outrages are likely to lead to general acceptance of the need to do absolutely everything to eliminate the threat. Everyone will be worse off if we ever reach that situation. It is best that that is borne in mind by the courts when deciding on each proposed government legislative response. A little unpleasant medicine now will be a lot better than a potential amputation later.