THE pattern is horribly familiar. A bomb outrage — the Guildford and Birmingham pubs, Hyde Park and Brighton, Omagh, 9/11 and the July bombs in London — innocent civilians are slaughtered and the government in power feels compelled to take a tough stance. Within days there is a host of measures creating offences and powers under the heading of anti-terror.

The statute book is bursting with such legislation. But the question that never receives an adequate hearing in the debates that follow, infused with fear and haste, is whether the legislation is necessary, let alone effective. Conversely, can such laws be counter-productive?

MPs made very clear their views last week. Charles Clarke has been forced to compromise on plans to detain suspects for up to 90 days — his answer, expected this week, is likely to be a limit of 28 days.

For the past 35 years I have participated in many trials involving allegations of terrorism, numerous appeals, become familiar with successive Anti-Terror Acts — at first temporary, now permanent — and, in 1973, had my car blown up outside the Old Bailey. I have a close interest in what works and what doesn’t.

The short answer is that none of these acts did, or would have, prevented what happened on July 7 — and nor would the facile vagueness of the new clauses. The practical ramifications for the detention, investigation, prosecution and conviction of actual or potential terrorists are negligible. Between 9/11 and September 30, 2005, 895 people were arrested under the Terrorism Act 2000 — only 23 have been convicted of terrorist offences. This pattern has been repeated throughout the history of this type of legislation from the mid-1970s onwards.

The term “terrorism” is both unnecessary and indefinable. Those intending or committing acts of terrorism are invariably covered by ordinary and readily recognised offences. At present, the essential part of the definition reads “the use or threat of action for the purpose of advancing a political, religious or ideological cause”.

A moment’s reflection will identify the core issue — one man’s freedom fighter being another’s terrorist. Recently it has become more controversial as states go to war, illegally, to advance a political cause such as “regime change” and thereby commit acts of “state terrorism”. The UN and the International Criminal Court in the Hague have yet to find agreement not only on what constitutes the war crime of aggression but also on what constitutes terrorism. These divisions make the glorification clause, even in modified form, untenable. The story of Samson in the Old Testament, eulogised by Milton, and Guy Fawkes exhibitions might all fall foul of this clause. No one will be reassured by the protestation of politicians who claim that such examples would never be at risk— the Prevention of Terrorism Act was originally said to be intended only to combat Irish terrorism.

If all else fails to find favour, there is always “detention without charge”. Governments, particularly British ones, seem to think this is the ultimate weapon that demonstrates they mean business. Whether it is characterised as internment or not is of little consequence — the effect is much the same. Its use in British colonies and, infamously, Northern Ireland in the Seventies, was a political and practical debacle.

It must be remembered that barely a year ago this Government staunchly defended its right to lock up foreign nationals indefinitely, without charge or trial and without the sight of the evidence against them. The Attorney-General berated the law lords for daring to question what was deemed to be a matter of political judgment.

The Government has rejuvenated detention without charge in its 90-day clause. Only regimes akin to apartheid South Africa have employed similar provisions. No other European nation, including Spain post the Madrid train bombings, has invoked so long a period, potentially in breach of Article 5 of the European Convention.

This should come as no surprise. Recognising the discriminatory nature of the Belmarsh case, there can be no doubt that this Government intended to extend such proposals to UK citizens and aliens alike. David Blunkett said as much on a visit to India in 2004. Here we have it — justified now on a different basis. The police need more time to sift the material.

One of the real reasons for 90 days is intimidation. What is overlooked is that the police and security services have a vast array of powers that do not depend on the need for an arrest. Besides obvious changes in British foreign policy, the only way to combat terrorism is by acquiring reliable, responsible and specific intelligence. The Regulation of Investigatory Powers Act 2000, and a number of other statutes, enables the authorities to engage in phone tapping, electronic intercepts, decryption of electronic data, eavesdropping, covert surveillance, access to bank accounts and so on. If conducted in a co-ordinated and systematic manner, this should produce hard evidence at the point of search or arrest.

Besides anti-terrorism legislation per se being largely irrelevant and illusory, it is often counter-productive. Whole communities, initially Irish now Muslim, feel criminalised, isolated and alienated. Their homes are raided, their places of worship suspected, their bookshops closed. Some feel it may not be safe to walk the streets. This is exacerbated by the Islamaphobia whipped up by sections of the media, particularly the tabloids. Now is the moment for serious reappraisal of how terrorism should be dealt with in a democratic society. This is not by according it special status and believing that special legislation can do the job.

The author, a QC, is head of Tooks Chambers

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