Wednesday, 10 December 2008

A Brief Look At The UK's History of Laws for Preventive Detention

This is part of an essay i'm handing in today, but I think it demonstrates rather effectively the extent the which similar laws have been around in the past.

Historically in Britain preventive legislation has been used to combat terrorism in the past. Although many writers such as Fenwick (2002) suggest that preventive detention to combat terrorism in Britain was first introduced in the 1974 Prevention of Terrorism (Temporary Powers) Act (PTA), as Blum (2008) notes, it was the 1939 Prevention of Violence (Temporary Powers) Act (PVA) which introduced powers to detain people for up to seven days. Initially this act was only to last for two years, but it wasn’t allowed to expire until 1952 and only repealed in 1973. The PTA was a reintroduction of the PVA, mostly as a response the bombing of two pubs in Birmingham that year, with seven days detention that needed to be justified by reasonable suspicion of involvement in acts of terrorism. However, the PTA also introduced the ability to hold someone without access to a lawyer for the first 48 hours. Like the PVA, the PTA was continually renewed (in this case until 2000), but was also rewritten on several occasions. According to Blum (2008), 27,000 people were arrested between 1973 and 1996 under the act, although only 15% were ever charged with a crime.
An additional set of powers was granted in the 1973 Northern Ireland (Emergency Powers) Act which allowed the government to detain terrorist suspects without charges for 72 hours, not even needing the former ‘reasonable’ suspicion. As Blum (2008) notes, although these powers were suspended in 1987 in favour of the provisions of those in the PTA, the Act was still renewed in Parliament until 2000.
The reason why both the above sets of powers were not renewed after 2000 was that that year saw the first permanent act dealing with preventive detention in the UK, the 2000 Terrorism Act (TA). The TA incorporated the provision of similar powers to both the PTA and PVA allowing for seven days detention without charge on the grounds of reasonable suspicion. It is worth noting that although it did not grant extra powers, this making permanent of previously temporary legislation occurred before the attacks of 11th September 2001. It was only in 2003 that the TA was amended to include preventive detention for 14 days (Blum, 2008). Additionally, as Fenwick (2002:81) comments “The reality behind the ‘temporary’ provisions appears to be that for much of the twentieth century UK governments have kept emergency legislation on file or in suspension, ready to be brought into law at short notice…”

After the events of 11th September 2001, the Anti-Terrorism, Crime and Security Act (2001) (ATCSA) was introduced which allowed for the indefinite detention or deportation of any foreign national suspected of being engaged in terrorist activity (Blum, 2008). However, as Blum (2008:16) notes these powers did not survive as “The government ultimately repealed the provisions of ATCSA dealing with indefinite detention based on a House of Lords Judicial Committee December 2004 ruling that such powers were incompatible with articles of the European Commission on Human Rights relating to the right to liberty and the right to freedom from discrimination. The Committee found the indefinite detention powers to be discriminatory as they only applied to foreign nationals, not to British citizens, and that they were not proportionate to the threat Britain faced from terrorism.” The provisions of this act during its three year life affected 17 foreign nationals in Britain (Blum, 2008).
A further Terrorism Act of 2006 (TA06) created provisions for 28 days preventive detention, but this was subject to strict judicial review of the detentions (Blum, 2008). During the summer of 2007 there were attempts to extend the period of preventive detention to 56 days, however, as Blum (2008) points out, both the four options presented for this and proposed civil emergency legislation to extend the period of detention by 30 days were defeated in Parliament. Over the last year there has also been debate about extending preventive detention up to 42 days, but the government appears to have dropped this for the present.
However, preventive detention has not just been used in relation to terrorist threats it has also been used during both world wars. As Blum (2008) notes, Regulation 14B, which was enacted in 1915, gave powers which enabled the Home Secretary to order the detention of anyone they thought endangered public safety or the nation. Similarly, Regulation 18B gave similar powers to the Home Secretary during World War II, and as Blum (2008) notes, over 2000 people were detained under these powers. However, as Blum (2008) points out, the difference between these powers and are those for Northern Ireland was that the latter were not uncontrolled executive powers but pre-trial detention which meant there could be judicial review of the detention.

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