Writing in today’s Guardian, Lord Falconer, the former Lord Chancellor who helped introduce the Terrorism Act 2000, has laid bare the increasingly clear case that the police acted unlawfully in detaining David Miranda under Schedule 7 of the Terrorism Act 2000.
“The Terrorism Act defines a terrorist as someone “involved in committing preparing or instigating acts of terrorism”. Miranda is plainly not committing or preparing acts of terrorism.”
At stake is not only a procedural check but the fundamental principle of the rule of law – namely, that the state will not use powers granted to it for reasons the democratically elected legislature has not permitted.
The Home Secretary argued on Radio 4’s The World at One that “If the police believe someone has in their possession highly sensitive stolen information that could help terrorists that could lead to a loss of life, it is right the police should act. I believe schedule 7 of this act enables police to do that.”
However, such a provision is not found in the statute and such justification is being exposed as extremely thin by a range of figures.
As we have previously argued, a range of powers exist if the intent was to recover stolen information. Schedule 7 of the Terrorism Act 2000 is not such a power and if the intent was to recover the information, or to interrogate Mr Miranda about activities not related to terrorism, then we can only conclude that the police willfully used the wrong power to avoid checks and balances on other powers, or were grossly negligent in using Schedule 7 to do so.
Lord Falconer agrees:
“If the state contends a person holds information unlawfully there are a range of powers it can use to restrain its use, though they are all subject to legal limitations. The schedule 7 power is not given to restrain the use of information.”
Gwendolen Morgan, one of David Miranda’s Lawyers, shares this concern:
“We have grave concerns about the decision to use this draconian power to detain our client for nine hours on Sunday – for what appear to be highly questionable motives, which we will be asking the high court to consider. This act is likely to have a chilling effect on journalists worldwide and is emphatically not what parliament intended schedule 7 powers to be used for.”
And this was echoed by Yvette Cooper MP:
“There are serious questions about how the nine hour detention of David Miranda could be justified for the purpose of finding out whether he was engaged in terrorist activity”.
David Davis MP also highlighted the flaw in the Government’s arguments:
“The sorts of words we’ve been hearing coming back actually rather remind me of when the current policy minister, Damian Green, was arrested by the police. They used like “proportionate” and “within the law” and such things then. It wasn’t true then and I don’t think it’s true now.”
“It fails logic 101. We’re used to this response from the Home Office – ‘if you’re not on our side you’re on the side of the terrorists’ is what they’re trying to say. It fails logic 101. If they suspected there was information, unique information carried by Mr Miranda that they could intercept and take away and therefore prevent it coming into the hands of terrorists, then you could understand that, although even then section 7 was not designed for that and doesn’t actually allow that.”
Julian Huppert MP has also highlighted the need to reform existing legislation.
“This is clearly not what anyone would think of as a case of terrorism, and seems to be inappropriate for that reason. However, this does not excuse the fact that the terrorism act powers are far too broad anyway, with tens of thousands of people each year being detained under schedule 7. We should insist on changes for those people as much as for David Miranda.”
You may agree that it is right for the security services to attempt to recapture this data, but Schedule 7 was not the right power to do so – and that principle is too important to allow to slide by on the grounds of convenience.