The ultimate test: Countering plots and preventing further atrocities

TO: Labour’s next Leader

FROM: Paul Goggins

RE: Security

9/11 was a defining moment for global politics as well as for Labour in government. As ministers sought answers to new forms of international terrorism they reset the balance between individual freedom and collective security. The result, much debated, was a range of additional powers including extended pre-charge detention.

The courts have also played a key role in reshaping the new landscape. Control orders, for example, were introduced as a replacement for detention without trial following a ruling by the Law Lords.

The coalition government has initiated a full review of counter terrorism legislation which will run until the autumn. Given the comments and decisions already made by the Home Secretary it is likely that the availability of pre-charge detention will be reduced whilst Section 44 powers will be tightly restricted or removed altogether.

You will need to take a clear and early view. Whilst you will not want your views on civil liberties to be defined and understood only in terms of counter terrorism policy this area will be seen as a key test of where you stand.

Engage with the government and Labour backbenchers

You should not disown the past: Labour ministers had to respond with urgency to new threats and quite rightly placed public safety at the heart of their thinking. Equally, if you simply uphold our record in government you could very quickly become marginal to developments in this vital area of public policy.

So, you should indicate immediately to the Prime Minister and the home secretary that you will seek consensus wherever possible and intend to make a positive contribution to the review. You will need to take advice from the police and other external experts.

You should try to heal the divisions that have grown within the Parliamentary Labour Party on this issue – especially with so many new Labour MPs who have not voted on these controversial issues before. You should establish a discussion within the PLP that engages all sides of the argument. You should also encourage greater public discussion and understanding of the nature of the threats we face and the need to counter them effectively.

Counter-terrorism policy

In terms of policy you should make common cause with the government in dealing with organisations that promote hatred or violence as well as on the issue of deportations with assurances. More could be done to encourage other countries to treat returnees in accordance with ECHR principles – perhaps with an enhanced role for international NGOs. You should also make it clear that laws intended to deal with terrorism should only be used for that purpose and not for general surveillance of the community or the monitoring of minor misdemeanours.

On pre-charge detention you should accept the need for a new approach; one that is focussed on risk rather than numbers of days. Provided the advice from the police does not suggest otherwise, you should advocate a policy of what might be called 14+. This would include a willingness to support a move to a standard maximum of 14 days whilst at the same time asserting the need for additional arrangements, with strict judicial oversight, in exceptional cases.

You should be robust in committing yourself to the retention of control orders. Whilst they are not a perfect solution, ECHR rulings will make it impossible to deport every individual who is suspected of being involved in terrorism and prison is not an option without charge or conviction. Where there is intelligence that someone is a real and serious threat they cannot simply be allowed to walk the streets unchecked. You might offer to explore potential improvements to the judicial oversight of these cases – perhaps establishing a new court that would carry the responsibility for keeping cases under review.

Crucially, you should press for an urgent overhaul of the rules on disclosure. The ruling in the AF case is making the effective use of intelligence in decisions about control orders and the release of sentenced prisoners almost impossible in an increasing number of cases. It is unacceptable that ministers and senior members of our police and security services may have intelligence that an individual is plotting terror, have lawful powers to control or detain him, but be unable to exercise those powers because case law demands that he must be given the same access to that intelligence.

Accept that Section 44 in its current form has to go but argue in favour of new or revised stop and search powers in narrowly defined circumstances. These powers should never have been used indiscriminately – and we had tightened the system up – but when the police and security services have specific intelligence about imminent terrorist activity and do not know the exact identity of those concerned they need to be able to disrupt that activity in order to protect the public. The “reasonable suspicion” threshold can be too high a hurdle in circumstances where such a threat is current. The use of such powers could be kept under review by the special court referred to earlier.

Be mindful too of the continuing threat from Dissident Republicans in Northern Ireland. Whilst devolution has put policing powers under local control, terrorism legislation remains a matter for Westminster and it is vital that the PSNI and security services have the powers they need.

There will be other areas to discuss: for all the difficulties you will want to keep an open mind on the use of intercept as evidence and on post-charge questioning. The police will have strong views about the importance of DNA records.

You should keep resources under constant scrutiny. Labour was given enormous credit by those who do this difficult work for putting in place record levels of investment and you should be ready to expose any attempt – locally or nationally – to redirect this money to deal with cuts elsewhere in policing.

You should also assert the importance of coherence and connection between policies that deal with the threat of terror and those that tackle the causes of violent extremism. You should offer a candid appraisal of our efforts in government to combat radicalisation in prisons and universities as well as at community level. We began this work from a standing start after 7/7 and it is important that we share the lessons learned.

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The ultimate test for the government’s review will be the extent to which the policies that emerge are successful in countering plots and preventing further atrocities. Whilst I encourage you to be constructive and seek consensus wherever possible, do not lose sight of the scale and seriousness of the ongoing threats. Whatever the public discourse on our hard won freedoms, the public will judge harshly those who they regard as soft on terror.

This memo, and the others in the series, were first published by the Open Left project at Demos