A Speech He Could Not Make Today

So New Labour plans to introduce a new offence of publishing a statement which "glorifies, exalts or celebrates" acts of terrorism. (Full text here – pdf).

Alfred Nzo, General Secretary of the African National Congress, spoke in Camden on June 26th 1980, the 25th Anniversay of the Freedom Charter. He spoke of the two attacks by ANC on 1 June on two Sasol oil refineries:

The main strategic objective of the ANC and its allies is the armed seizure of political power for the establishment of a people’s government in South Africa. The recent attacks by the ANC guerillas on two of South Africa’s huge Sasol oil-from-coal plants (Sasol l and 2) as well as on the oil refinery have underlined not only South Africa’s continuing vulnerability to an oil embargo but even more significantly, for the future development of the revolutionary armed struggle of our people. The SASOL operation demonstrated the growing skill and sophistication of the actions of our people’s army – the staunchness of its cadres.

If Labour’s proposed legislation had been in place then, he would not have been able to make that speech.

Just sayin’.

12 thoughts on “A Speech He Could Not Make Today”

  1. I can’t imagine any government, whether democratic, racist, repressive or liberal, nor any criminal justice system, that would allow anyone to make the remarks that you quote without taking action against the speaker. That remains the case whether or not one believes that in June 1980 violence against the South African state was justified on the asserted grounds that the legitimate aims of the ANC could not have been achieved by exclusively peaceful means (and there’s room for argument about that, however deeply one loathed apartheid and its attendant cruelties — especially as in the end the ANC’s campaign of violence made hardly any contribution to the overthrow of the apartheid regime). There’s also the interesting question whether it’s meaningful to distinguish between attacks on economic targets such as refineries, ideally not involving human casualties, and attacks on ‘innocent’ civilians such as those carried out by suicide bombers. Do both kinds of activity qualify as ‘terrorism’? What about an armed attack on policemen in a civil war type situation? These matters are not entirely straightforward.

    The government’s latest anti-terrorism proposals use the definition of terrorism in the Terrorism Act 2000:

    1. – (1) In this Act “terrorism” means the use or threat of action where –
    (a) the action falls within subsection (2),
    (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
    (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
    (2) Action falls within this subsection if it –
    (a) involves serious violence against a person,
    (b) involves serious damage to property,
    (c) endangers a person’s life, other than that of the person committing the action,
    (d) creates a serious risk to the health or safety of the public or a section of the public, or
    (e) is designed seriously to interfere with or seriously to disrupt an electronic system.
    (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

    Not a bad stab at it, I suppose. It would certainly have caught Mr Nzo’s remarks.

    Brian

    Owen replies: You say that you “can’t imagine any government … that would allow anyone to make the remarks that you quote”. You don’t need to imagine: Mr Nzo was allowed to make that speech in London in June 1980, by the Thatcher Government. He would not however be allowed to make that speech in London under a New Labour government, if this bill is passed.

  2. PS: I have just noticed that the government’s new Bill includes a relatively minor amendment to the definition of terrorism in the 2000 Act quoted in my preceding comment:

    28. Amendment of the definition of “terrorism” etc.
    In each of—
    (a) section 1(1)(b) of the Terrorism Act 2000 (under which actions and
    threats designed to influence a government may be terrorism), and
    (b) section 113(1)(c) of the Anti-terrorism, Crime and Security Act 2001
    (c. 24) (offence of using noxious substances or things to influence a
    government or to intimidate),
    after “”government”” insert “”or an international governmental organisation””.

    I don’t know the reason for this insertion.

    Brian

  3. Owen,

    Your footnote to my first comment: yes, I omitted to make the distinction between remarks relating to the country in which they are made, and those relating to a different country. There is a sort of attempted safeguard against abuse of the provisions of the new Bill in section 15 of the Bill, requiring the consent of the Attorney-General as well as of the Director of Public Prosecutions for prosecutions on certain charges relating to offences “committed for a purpose wholly or partly connected with the affairs
    of a country other than the United Kingdom”. This is no doubt intended to avoid the obligation to prosecute someone making a speech or otherwise acting in contravention of the Act (Bill) involving violence, or the threat of it, in a foreign country where the situation may be held to justify violence.

    15 Consents to prosecutions
    (1) This section applies to any offence under this Part other than an offence under
    section 3 [Dissemination of terrorist publications — BLB].
    (2) Proceedings for an offence to which this section applies—
    (a) may be instituted in England and Wales only with the consent of the
    Director of Public Prosecutions; and
    (b) may be instituted in Northern Ireland only with the consent of the
    Director of Public Prosecutions for Northern Ireland.
    (3) But if it appears to the Director of Public Prosecutions or the Director of Public
    Prosecutions for Northern Ireland that an offence to which this section applies
    has been committed for a purpose wholly or partly connected with the affairs
    of a country other than the United Kingdom, his consent for the purposes of
    this section may be given only with the concurrence—
    (a) in the case of the Director of Public Prosecutions, of the Attorney
    General; and
    (b) in the case of the Director of Public Prosecutions for Northern Ireland,
    of the Advocate General for Northern Ireland.

    So it’s not necessarily the case that Mr Nzo would have been prosecuted in the UK under the government’s proposed new law: the Attorney-General might well have withheld his consent to a prosecution, especially if the potential offence had been committed soon after some particularly brutal act of repression by the South African government, such as the Sharpeville massacre in March 1960. But it’s an obviously inadequate safeguard, although perhaps better than nothing.

    Brian

    Owen replies: I thought this section of the bill was very odd. As I understand it, a speech like Mr Nzo’s would be a crime, but a government minister would decide whether or not the person committing it should be prosecuted. I wonder if there are many other examples in which ministers decide who should be exempted from being prosecuted for crimes they have committed?

  4. There’s a legitimate distinction to be made between the Law Officers of the Crown (the Attorney-General and the Solicitor-General) some of whose main functions are exercised in a legal, not political, capacity, and other ministers. (The Lord Chancellor is another special case, while the office lasts.) I am sure there are many other instances where a prosecution requires the Attorney-General’s consent, although I don’t know offhand what they are. In some cases the Attorney-General can compulsorily “take over” a private prosecution, often in order to drop it, which amounts to the same thing as withholding consent to it. It’s probably a necessary power for someone who is part of the government but who can act in a quasi-independent role as a lawyer to possess, in order to prevent prosecutions in cases where an offence may technically have been committed, but where it’s not in the public interest to proceed with a prosecution. At the most trivial level, it can be used to stop “frivolous or vexatious” litigation.

    Of course there are innumerable offences committed every day where either the police or the DPP decide not to prosecute, for all sorts of reasons. Requiring the Attorney-General’s consent as well just adds another layer.

    But we need advice on all this from a lawyer!

    Brian

  5. Owen,
    What about the Home Secretary’s power under S2(3)?

    “A person is guilty of an offence under this section in respect of a statement glorifying, exalting or celebrating anything occurring more than 20 before the publication of the statement only if the statement relates, whether directly or indirectly, to conduct or events specified for the purposes of this section by order made by the Secretary of State.
    (4) The power of the Secretary of State to make an order under subsection (3) shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.”
    t

  6. Tony

    Thanks.

    1. My question was more about whether an organisation would have been able to say such things at that time (in 1980), if New Labour’s legislation had been in place then – to which the answer seems to be that it couldn’t.

    2. The armed struggle of the ANC was formally ended in August 1990. Through much of the late 1980s, MK was engaged in activities (eg blowing up electricity substations) which would definitely count as terrorism under this act (“serious damage to property”). This was less than 20 years ago, and so glorification of those activities (since 1985) would be caught by New Labour’s proposed legislation. As I read the draft bill, it will be illegal during 2006 for me to say that I support the bombing of the Carlton Centre in Johnanesburg in 1987 by the MK as part of the armed struggle – though I will be able to say that again in 2007 when the event is 20 years old. (Though I realize the AG could decide not to prosecute me if I did say this.)

    3. I have no hesitation in “glorifying” the ANC struggle for the liberation of South Africa as a whole. I have mixed feelings about the activities of the MK during this period, which was part of that overall effort. On the one hand, I condemn unreservedly the bombing of Magoo’s Bar in Durban in 1985. On the other hand, I do not have significant qualms about the bombing of SASOL plants, nor the continuing campaign of relatively minor bombings, with little risk to human life, in the late 1980s. (The campaign changed tone in 1987 when the ANC told MK not to “act against” civilians). One interesting issue that this gives rise to is whether New Labour’s proposed legislation would apply to someone who endorses the overall aims and methods of a broad campaign and who, while having reservations about some particular operations and approaches, takes the bad with the good and “glorifies” the campaign as a whole. That was and is my position on the armed struggle, and it seems to me that I would be liable for prosecution under the proposed legislation.

    4. I heard Tony Blair’s interview on the Today Programme on Friday 16th September, in which he was explaining this legislation. (Does anyone have a transcript of this?) His definition of “terrorism” (taking innocent lives deliberately) is clearly no good, as (a) that is the same as the definition of “murder”, incitement to which is already illegal and (b) it would include Hiroshima, Dresden, Coventry, and our campaign of ‘shock and awe’ over Baghdad. Furthermore, he said that he did not want to make it illegal for people to say that they sympathy for the the activities of a group terrorists – his concern was to stop people who went beyond this. But then he had the utmost difficulty describing the category of things which do go beyond this but which would not already be caught by the legislation against incitement. Either there is nobody in this category, in which case we don’t need the legislation, or there is, in which case I would like a more coherent explanation of which kinds of statement would be prohibited that are not a form of incitement but also not merely an expression of understanding or sympathy with the causes and actions of the organisation.

    5. Finally, I think it would be a pity if London could not once again host an organization like the ANC (say, for example, a Burmese Liberation Movement, or some future Zimbabwean Movement for Democracy) in the 21st Century. I am proud that many of us supported the ANC, morally and financially and with our time and voices, and I think that the world is a better place for it. I am not impressed that New Labour plans to make it illegal for something like that to happen again.

  7. I think there’s a good case for giving ‘terrorism’ a very restrictive definition indeed – confining it, essentially, to attacks designed to kill members of the public indiscriminately so as to cause panic and alarm in the public at large. This would embrace 9/11, the July 7 bombings, Enniskillen and the 1970s neo-fascist terror campaigns in Spain and Italy, while excluding most of the actions of Northern Irish paramilitaries, most (if not all) of the actions of the Red Brigades and other left-wing ‘armed struggle’ groups, and so on.

    Some people will baulk at this argument and insist that the murder of Ross McWhirter (for example) was an act of terrorism. Accepting this for the sake of argument, I can’t see any justification for extending the ‘terrorist’ label to political violence against property – classified by Mandela, I think correctly, as ‘sabotage’ rather than ‘terrorism’. And the Terrorism Act definition goes even further, explicitly classifying the threat of politically-motivated violence (or sabotage) as terrorism. This is alarming stuff, whose effect is – as Owen says – to outlaw any movement of determined opposition to any government in the world.

  8. I agree with virtually everything you say. My sole reservation is over your (admittedly qualified, or selective) endorsement of the ANC’s resort to violence in the 1980s (and I think earlier?). I well understand the case for it, and I had a good deal of sympathy for it at the time. Nevertheless, with hindsight I think it was a mistake, and not justified. It probably delayed Afrikaner (and much other South African) acceptance of the inevitability and indeed desirability, in everyone’s interests, of abandoning apartheid. It blurred the otherwise sharp ethical divide between the ANC and the National Party. It cost innocent blood on both sides. Above all, it didn’t accomplish anything useful: support for apartheid eventually collapsed for a number of reasons, including financial and social pressures (such as investment and sporting boycotts and western disinvestment), international isolation, the military pressures from Cuban victories in Angola and the increasing difficulty of ‘defending’ Namibia, the collapse of Soviet communism and the unifying threat it had been thought to represent, the growing likelihood of much more onerous international sanctions (despite Mrs Thatcher’s opposition to them), and so on. Of course not all of these developments could have been foreseen and it was a perfectly tenable view in the 1980s that there was no form of peaceful action that would seriously dent apartheid and that violence had become the only means of securing the rights of black South Africans. But even then I would argue, reluctantly, that it was too soon to reach that conclusion and that it would have been better to put the energies of the enemies of apartheid into galvanising and strengthening international opinion, campaigning for all kinds of economic and social pressure on South Africa, backing the UN and SWAPO in their attempts to bring about the independence of Namibia by peaceful means (well, SWAPO was in two minds about the ‘peaceful’, admittedly), actively seeking to reassure white South Africans that the aim was a multiracial society in South Africa in which the white minority would have a secure and assured place and not be steamrollered by one man, one vote majority rule — and that in a new democractic South Africa, race relations would not have been poisoned by a recent legacy of black people killing whites because they were white.

    As I say, in the end, ANC or MK violence in my view delayed rather than assisted in the end of apartheid, and was both an ethical and a strategic mistake. But I accept that it was an understandable and in some ways a defensible one. I certainly don’t think it should be made a criminal offence to defend and justify that policy in Britain or anywhere else: indeed to do so would be an unpardonable attack on freedom of speech that would risk throttling serious debate on all manner of important historical and ethical issues.

    On the UK government’s latest proposals, it seems to me inevitable that the utterly preposterous proposition that the home secretary should decree which acts of ‘terrorism’ of more than 20 years ago should be licensed for glorification, and which not, will be blown out of the water by gales of incredulous laughter. It plainly calls for the John McEnroe reaction. I do sometimes wonder what it is about the home office. But defining terrorism in such sweeping terms and making it a criminal offence to ‘glorify’ it is no laughing matter.

    I also agree that the Blair interview on the Today programme on Friday was both farcical and disturbing. But it says on the Today Programme website: “PLEASE NOTE: We are unable to offer transcripts for our programme interviews.” I can’t find it on the No. 10 website. No wonder.

  9. Owen,
    If the present Bill passes unamended, there’s no doubt that Nzo’s speech would fall foul of its provisions by a country mile.
    But by far the most pernicious sections are 2(3) and 2(4) giving the Home Secretary the novel power to determine the event or events giving rise to the offence.
    Take Nzo’s speech. It would be hard to imagine any Home Secretary not using his power under S2 (3) to exclude from the ambit of the offence the ANC’s action against SASOL. Yet, he would have power to “criminalize” a similar, yet perhaps, less “worthy” actions. How about the FLN’s massacre at Philippeville in their attempt to kick the French out of Algeria?
    It’s not a challenge, but I cannot think of any criminal offence, after it’s creation, that allows a Secretary of State to change the actus reus-the blameworthy act. Indeed, there seems nothing in the Bill as drafted to prevent the Home Secretary seeking parliamentary approval to exclude, under the 20-year rule, an offence already committed. Should both these sections pass through the legislative alimentary canal undigested by parliamentary scrutiny, we could have one of the most “political” offences on the statute book!
    t

  10. There’s a good article on this by Iain Macwhirter in the [Glasgow?] Sunday Herald of 18 September.

    I agree very much with Tony’s preceding comment. The idea of the home secretary deciding which past events we are allowed to ‘glorify’ and which ones if glorified will earn us seven years in the slammer, is way beyond satire. What about the assassination of Julius Caesar and the passages of the Shgakespeare play of that name which could be read as glorifying it? the French Revolution? the assassinations of Trotsky, the Archduke Franz Ferdinand at Sarajevo, Spencer Percival, Lincoln, J F Kennedy, Robert ditto, Martin Luther King? the activities of Lenin’s brother before he was hanged? the 14 July 1944 plot against Hitler? Good grief, all human history is a history of terrorism, according to Charles Clarke’s latest Bill! Who’ll dare to teach history any more if this pile of garbage goes through?

    But I can’t believe that it will.

    Brian
    http://www.barder.com/ephems/

  11. “I have myself written of the ‘terrible beauty’ of the plane bombings on the Twin Towers” – Iain McWhirter (Sunday Herald article cited

    “Combining the terrible beauty of the 12th March in Rome* with the geometric power of via Fani** is now the narrow gate through which the process of subversion in Italy must pass if it is to grow and not perish”
    – Franco Piperno, December 1978
    * Reference to the riots of 12/3/1977
    ** Reference to the Red Brigades’ ambush of Aldo Moro, leading to his kidnapping and the murder of his five bodyguards, 16/3/1978

    MacDonagh and MacBride
    And Connolly and Pearse
    Now and in time to be,
    Wherever green is worn,
    Are changed, changed utterly:
    A terrible beauty is born.
    – W.B. Yeats, “Easter 1916”

    But of course those examples of terrible beauty are a long time ago and we’re all friends now. If this law goes through, perhaps the papers can devote a page in their 1st January editions to a round-up of terrorist actions which have passed the 20-year threshold, alongside the usual story on declassified material.

    Slight digression on the Italians: Francesco Cossiga – who was a notoriously draconian Minister of the Interiorat the height of the Red Brigades campaign – opined in 1997 that “Terrorists plant bombs in cinemas. This was something else. [The Red Brigades’] operating methods were precisely those of partisan warfare.” Given the standing of the partisans in Italian historical memory, if that’s not glorifying the brigatisti I’m not sure what would be.

  12. Phil,

    Given the standing of the partisans in Italian historical memory

    I’ve a VHS copy of “complete” version of Bertolucci’s Novocento awaiting it’s transfer to DVD. The opening scene, in which the partisans are chasing Donald Sutherland, and his fascist partner, is a wonderful example if this. Come to think of it, there are parts in Visconti’s “Leopard” that also play on this memory!
    t

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