Iran General NewsOnce a terrorist, always a terrorist?

Once a terrorist, always a terrorist?


Daily Telegraph: Iran’s main opposition group has renounced violence and the courts say it poses no threat – yet the Government wants it to remain outlawed. The Daily Telegraph

Iran’s main opposition group has renounced violence and the courts say it poses no threat – yet the Government wants it to remain outlawed

By Joshua Rozenberg, Legal Editor

Britain and its EU allies deserve praise for backing a third round of UN sanctions this week against Iran’s nuclear ambitions.

All the more strange, therefore, that our Government seems willing to appease the Iranian regime by trying to maintain a Europe-wide ban on Iran’s main opposition group, the People’s Mojahedin Organisation of Iran.

The Home Office insists that the PMOI is a terrorist organisation – even though it never targeted civilians or operated outside Iran, it renounced violence in 2001 and fully disarmed in 2003.

In the Commons on Tuesday, a Tory MP described it as “the only Iranian movement capable of producing democratic change in Iran”.

At Luxembourg today, PMOI lawyers will challenge a decision taken by the EU Council of Ministers last June to keep the group on a list of organisations “involved in terrorist acts”. As a result, its funds are frozen and it is effectively prevented from campaigning in Europe for a secular democracy in place of Iranian theocracy.

More than a year ago, though, EU member governments were ordered to take the PMOI off the banned list by the EU’s Court of First Instance, a junior version of the European Court of Justice, which hears applications from individual claimants.

A ban imposed in 2002 and reimposed in 2005 “does not contain a sufficient statement of reasons”, the judges explained in December 2006, adding that the ban “was adopted in the course of a procedure during which the applicant’s right to a fair hearing was not observed.”

But the Council of Ministers refused to take the PMOI off the list, maintaining that the contested blacklisting had been replaced with a valid ban in May 2006.

That refusal was heavily criticised in January by the Council of Europe – an entirely separate body from the European Union. The Council’s Parliamentary Assembly adopted a report from its legal affairs committee, concluding that the EU Council of Ministers was “no longer following the rule of law”.

The EU Council had violated its obligations under EU Treaty, the assembly added. Member states had imposed the ban in May 2006 under the same faulty procedures that they had used previously, defying the court and violating the PMOI’s fundamental rights.

In June 2007, the Council of Ministers blacklisted the PMOI once again. It is this decision that David Vaughan, QC, for the PMOI, will be asking the Court of First Instance to annul at an expedited hearing today – together with yet another ban imposed six months later.

The PMOI is expected to argue that the EU’s anti-terrorist powers can be used only against organisations that are involved in terrorism at around the time a ban is imposed: past involvement is not sufficient.

Those arguments will be buttressed by what Dick Marty, the Swiss member of the Council of Europe’s Parliamentary Assembly responsible for the legal affairs committee’s report, described as a “sensational” ruling and “a slap in the face for HM Government”. Last November, a British court decided that the PMOI was not concerned in terrorism.

The Proscribed Organisations Appeal Commission, a court set up to consider appeals by organisations banned under the Terrorism Act 2000, described Britain’s ban on the PMOI as “perverse” and ordered the Home Secretary, Jacqui Smith, to lift it.

Sir Harry Ognall, the retired High Court judge who chaired the appeal commission, acknowledged that a finding of perversity was uncommon. But, as the commission pointed out, it was in the “perhaps unusual position of having before it all the material that is relevant to this decision”.

There was jubilation outside the court when PMOI supporters were told their challenge to the ban had been successful. In December, the commission refused Miss Smith permission to appeal, concluding that she had no reasonable prospect of success.

But then the Home Secretary asked the Court of Appeal for permission to challenge the ruling. Her application was argued in full last month before a court headed by Lord Phillips, the Lord Chief Justice.

That leaves the Court of Appeal with three options when it delivers judgment, probably later this month. It could refuse the Government permission to appeal, which means the PMOI ban would have to be lifted immediately.

It could grant permission but dismiss the substantive appeal, which would keep the PMOI banned while the Home Secretary sought permission to appeal to the House of Lords. Or it could allow the Government’s appeal, leaving the ban in place.

What, then, are the arguments? Under the Terrorism Act 2000, an organisation may be banned only if the Secretary of State believes it is “concerned in terrorism”. This is defined more widely than in EU law, covering not only organisations that take part in, prepare for and promote terrorism but also those “otherwise concerned in terrorism”.

In the Government’s view, that definition is wide enough to cover groups that have not undertaken terrorist acts for some time but may do so in future. A body that was currently inactive could still be concerned in terrorism, the Government maintained.

In support of its arguments, the Government referred to a law lords’ ruling given in 2001 by Lord Slynn. This was ironic.

Lord Slynn, now retired, is one of more than 30 peers and MPs who made the application for de-listing on behalf of the PMOI; others include the former Conservative Home Secretary Lord Waddington, QC, the former Labour Solicitor General Lord Archer of Sandwell, QC, and Lord Corbett of Castle Vale, who chairs the Labour peers’ group.

Jonathan Swift, appearing for the Home Secretary last month, told the Court of Appeal that Miss Smith had better access to advice on security than Sir Harry Ognall’s commission. Since the cost of failing to correctly evaluate risk was high, it “should be undertaken by persons responsible to the community through the democratic process”.

As Home Secretary, she was entitled to adopt a “precautionary approach” to evaluating risk. A “high degree of weight and deference” should be paid to the judgment she had reached. If there were reasonable grounds for her conclusion that the PMOI remained concerned in terrorism, that decision could not be overturned.

Not so, argued Nigel Pleming, QC, for the PMOI supporters. The Home Secretary should be denied permission to appeal because she had not raised any points of law. Home Office lawyers had accused the commission of misconstruing the Terrorism Act.

In reality, the commission’s decision was based on the Government’s failure to produce evidence of PMOI involvement in terrorism or proof that it posed any risk – findings of fact, not law.

In any event, Mr Pleming argued, the commission had correctly interpreted the phrase “otherwise concerned in terrorism”. A “generalised fear” that the PMOI might resume terrorist activities in the future – dismissed by the commission as “pure speculation” and “at odds” with the Act – was insufficient justification.

Putting the legal arguments to one side, it strikes me that the argument “once a terrorist, always concerned in terrorism” simply won’t wash.

If organisations were to remain banned for what they had done in the past, Parliament would never have provided procedures under which they could seek to be taken off the list. And if renouncing terrorism is not sufficient, what is?

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