Legal Opinion: National security must be weighed against free speech

Ministers have been accused of using illiberal measures to tackle terrorism. Robert Verkaik, Law Editor, considers the potential dangers of this policy

Senior judges and civil libertarians have long argued that the Government's knee-jerk reaction to terrorism not only threatens Britain's long-cherished democratic values but will ultimately serve the terrorist's cause.

This week MPs sitting on the joint Commons committee on human rights echoed this concern by finding that a series of anti-terror measures was incompatible with the adoption of Europe's own principles on the fight against terrorism.

The Europe Convention on the Prevention of Terrorism was drawn up in 2005 to help governments strike a balance between preventing terrorism and upholding human rights across Europe. The committee's examination of the Convention is part of its continuing inquiry into counter-terrorism policy and human rights.

In the immediate wake of the 2001 attacks on America the British government tried to counter the threat of terrorism by giving the police and security forces greater powers to arrest and detain suspects. But after the 2005 attacks on London a succession of ministers turned their attention to those who they believed were helping to create a climate of terrorism. It is these new measures, in particular the offence of encouraging terrorism, that have led to rebukes from the human rights committee.

On Monday the MPs said:

We wish in our conclusion to emphasise our view that the combination of the breadth of the definition of "terrorism", the vagueness of "glorification", and the lack of a requirement that there be at least a danger that an act of terrorism will result, makes the encouragement of terrorismoffence in section 1 of the Terrorism Act 2006 incompatible with the requirement in Article 12 of the Convention that the establishment of any new offence of public provocation to commit a terrorist offence be compatible with the right to freedom of expression, and proportionate to the legitimate aim pursued. They argued that the offence is likely to have a disproportionate impact on freedom of expression.

"We therefore conclude that, on the current state of the law, the Government cannot and should not ratify the Convention because our domestic law is not compatible with it. We draw this matter to the attention of each House," the MPs concluded.

The committee said it would later publish a report which would setoutwhattheMPsbelievewould be a proper definition of "terrorism". This definition, said the committee, would take greater accountoftherespectfortherights to life and freedom of expression.

A Liberal Democrat member of the committee, Dr Evan Harris MP, said:

It is very disappointing that we have had to recommend that the UK is not in a position to ratify this treaty. The Government has failed to ensure that our anti-terrorism legislation complies with the safeguards for civil liberties required by the convention. Ministers' refusal to change the over-broad definition of terrorism, and its heavily crit-icised "glorification" offence, means that we cannot comply with the terms of this Convention.

It is too early to evaluate the full impact of the new laws on the right of the Muslim community to express itself. Liberty, the civil rights group, argues that it may not ever be possible to judge the full harm of these new laws. "It is logically very difficult to assess what views people have decided not to express and what organi-sations people have decided not to join or support as a result of the provisionsofTerrorismAct2006," Liberty told the committee.