Schedule 7 of the Terrorism Act 2000 came into force on the 19th February 2001. 12 years later and its use is widespread; 61,145 people were held under the provisions in 2012-13 alone. The provisions of Schedule 7 are extremely controversial and have held a prominent place in the media recently after the whole ‘Miranda’ affair. Mr Miranda is the partner of Glenn Greenwald, a journalist with the Guardian newspaper. He has made a series of controversial disclosures on US and British spying capabilities based on information from the former US intelligence employee Edward Snowden.
Police officers and politicians always seem to be demanding more powers to protect us from terrorism. They always sound so reasonable and so concerned for our welfare when they do. For who wants to be blown apart? But the state said its new powers to intercept communications would be used against terrorists; they ended up using them against fly tippers. Now it is clear the police have used the Terrorism Act against the partner of a journalist who is publishing stories the British and American governments would rather keep quiet. This use of the Terrorism Act has been dubbed an attempt to intimidate Greenwald, sending a message to the media about reporting on such controversial issues. A seemingly blatant misuse of the powers and certainly not what parliaments meant them to be used for when they were enacted. The guidance to the law clearly states that Schedule 7 ‘should only be used to counter terrorism and may not be used for any other purpose.’ Juxtapose this with the current use of the powers and it seems the directions seem to have been clearly reversed; the powers are not being used to counter terrorism but are being used for any other purpose.
Why have the powers been used in this case? Well, Mr Greenwald has written many articles exposing the NSA’s huge international surveillance programme. As a result America clearly wants him silenced and prevented from publishing more of their dirty secrets. Secrets which many argue are clearly in the public interest to be made aware of. It is apparent that America does not have to abide by the European Convention on Human Rights (ECHR), however, it is clear that the UK Government does. So why then does the UK seem to be putting its special relationship with America before its obligations under the ECHR? Miranda’s detention has been described to have had a ‘chilling effect’ whilst being a ‘blatant attack’ on press freedom. Article 10 ECHR provides for freedom of expression. This applies to the press as equally as it does to private individuals. Therefore, the crux of the argument seems to focus on the government’s surveillance need, which they insist on keeping the public oblivious to, versus the right to freedom of expression.
Moving past Miranda, another shocking example of the use of Schedule 7 can be seen by the recent case involving Baraa Shiban. Mr Shiban is the Yemen project co-ordinator for London-based legal charity Reprieve. He has been working in Yemen investigating western counter-terrorism abuses. Only a few days ago he flew into London Gatwick Airport and was held under the Schedule 7 powers. He was held and interrogated for over an hour. Mr Shiban’s comments made after release only go to send a shiver down the back of the spine of many workers engaged in protecting human rights around the globe. He said, “Even we in Yemen heard of David Miranda’s nine hours in custody. Then I was stopped. Who will be the next human rights worker caught in the net of schedule 7?”
Schedule 7, in its recent uses, seems to be clearly incompatible with Article 10 ECHR. However, it is not only Article 10 in which it seeks to infringe. Schedule 7 not only removes the right to have a solicitor present, but also removes the right to silence. Anyone detained and questioned under the powers are warned that it is an arrestable offence not to answer questions, punishable on conviction with a three-month custodial sentence or a fine. This is a violation of Article 6 of the ECHR: The right to a fair trial. Article 6 provides for legal assistance in such circumstances, a provision which Schedule 7 does not cater for. An excellent analysis of how Schedule 7 engages Article 6 can be found here.
The clear incompatibilities of Schedule 7 with the ECHR are no longer sustainable. As a result the UK government carried out a review of Schedule 7 powers in 2012, including a public consultation. From this it has introduced a number of reforms, which are currently going through Parliament. These include allowing those held for longer than an hour to consult a solicitor, a reduction in the time someone can be held from nine hours to six hours, and training and accreditation for all officers using schedule 7 powers. These changes are welcomed however what happens to the many abuses which have already been carried out? Many will go unheard of and unreported; many people will have had their rights infringed upon and the state will not be held accountable. This will continue to happen until the legislation is changed and implemented, something which could still be many years away.
In conclusion, it seems clear that the Schedule 7 powers are not a proportionate response. They are being used outside of their purpose, as a weapon in the war on human rights. This needs to be shouted from the rooftops and opposed. Human rights should not be taken for granted. Once they are gone it is already too late.
LLB Student & Aspiring Barrister