Over the weekend, the United Kingdom held the partner of The Guardian’s Glenn Greenwald — who is currently feuding with several governments over the revelation of secret surveillance programs — for nine hours as he attempted to enter the country. It was perfectly legal.
David Miranda, Greenwald’s partner, was pulled aside during a layover at Heathrow Airport while traveling on business for The Guardian, then held without being charged and allegedly without a lawyer present for hours on end. Heathrow’s security said Miranda was being questioned under Schedule 7 of the Terrorism Act of 2000, a law intended to give British authorities the legal room needed to combat terror wherever it may lurk. Schedule 7 specifically deals with the movement of peoples into and out of the British Isles, and the powers that authorities have to detain suspicious persons.
The overarching law itself gives a definition in Section 40(1)(b) over who counts as a terrorist for the purpose of most of the act’s provisions, namely anyone who “is or has been concerned in the commission, preparation or instigation of acts of terrorism.” Unfortunately, there’s a loophole written into Schedule 7 that makes it much broader than the rest of the law. When it comes to people trying to enter the country, an examining officer — be they a constable, immigration officer, or customs officer — “may exercise his powers under this paragraph [related to detention] whether or not he has grounds for suspecting that a person falls within section 40(1)(b).”
This means that under the law no justification related to terrorism must be given before pulling anyone aside for questioning as they enter the country, leaving the potential for abuse apparent. While the Code of Practice for Examining Officers discourages discrimination against minority groups, the law as written gives no such protections.
Nor does it provide limits on searches and seizures carried out under the Act. According to Schedule 7, the authority conducting the inspection may search the person in question, anything belonging to him, and even search the ship or aircraft they traveled on for anything they own — which would then itself be searched. Once found, those items can then be held for further examination for up to seven days or longer if the examining officer believes the items “may be needed for use as evidence in criminal proceedings.”
This weekend’s incident has spurred interest among members of the British Parliament over how broadly the provision can be applied. “Bearing in mind it is a new use of terrorism legislation to detain someone in these circumstances … I’m certainly interested in knowing, so I will write to the police to ask for the justification of the use of terrorism legislation — they may have a perfectly reasonable explanation,” Keith Vaz, the chairman of the Home Affairs Select Committee, said on Monday.
Home Secretary Theresa May just last month released the results of a public survey on Schedule 7, polling a wide-range of British citizens. This includes individuals and groups who both carry out the law and those who have been affected by the law’s provisions. “Schedule 7 can erode the confidence of the ethnic community in the police leading to members becoming more defensive and resistant to compliance,” Glasgow Central Mosque responded, which was then cited in the report as an example of those affected. “Individuals often feel that the police are insensitive or intimidating.‟
In the end, the majority of respondents said that the Schedule 7 powers are “unfair, too wide ranging and should be curtailed.” As a result, even the current Conservative government has reached the conclusion that the law as it is framed is overly broad. According to the report’s conclusions, May has introduced several amendments to the Terrorism Act allowing for legal representation for detainees, increasing supervisor oversight of the process, and dropping the maximum detention period to six hours.