The limitations of terrorism prevention and investigation measures

Quilliam Policy Briefing The Limitations of Terrorism Prevention and Investigation Measures (TPIMs) The following is written evidence as requested by the Rt. Hon. Keith Vaz MP in his capacity as Chair of the Home Affairs Select Committee to review the policy of Terrorism Prevention and Investigation Measures (TPIMs) and their implementation.

The situation in the UK is admittedly more positive than in many places in the world, yet the threat of terrorism and the extremist ideologies and narratives that aim to legitimise it are still prevalent and must be addressed. Any response should be well-rooted in the universal human rights that underpin the liberal and democratic values we seek to protect, and any component of counterterrorism or counter-extremism must not further complicate other components of the effort.

Quilliam believes that democracy will only defeat extremism by killing it softly, not by mimicking it.1 It is widely accepted that “we cannot use force everywhere that a radical ideology takes root”2 and we welcome the fact that the neo-conservative wars of George W Bush to instill democracy at the barrel of a gun, replaced by the neo-conservative-lite measures of Barack Obama that treat Al Qaeda as a mafia-style organisation and aim to decapitate its leaders through drone strikes, are now finally being complemented by a ten-year effort to counter violent extremism. Just as the former control orders were dismissed for being incompatible with human rights, Terrorism Prevention and Investigation Measures (TPIMs) also face accusations of being control orders-lite, rebranded for political capital.3 However, it is here argued that TPIMs, if brought further into line with human rights and integrated with counter-extremism methods including challenging extremist ideology and narratives, can be a successful component of the current efforts to counter terrorism and extremism. Any assessment must, therefore, be both of the measures in isolation and as part of a larger agenda.

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Quilliam Policy Briefing: The Need for a Clear and Consistent Counter-Extremism Strategy Headed by an Expert to Steer the Prime Minister’s Task Force, 4 June 2013, http://www.quilliamfoundation.org/wp/wpcontent/uploads/publications/free/the-need-for-a-clear-and-consistent-counter-extremism-strategy.pdf [accessed 20 January 2014] 2

President Barack Obama at National Defense University, Fort McNair, Washington DC, 23 May 2013, http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defense-university [accessed 20 January 2014] 3

D. Anderson, “Terrorism Prevention and Investigation Measures in 2012”, https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2013/04/first-report-tpims.pdf, th 2013 [accessed 19 January, 2014].

The need for measures to deal with individuals whom officials assess to be involved in terrorismrelated activities but deem unable to charge or deport is valid. These British citizens will not have committed the “use or threat of action designed to influence the government or an international governmental organisation or to intimidate the public, or a section of the public; made for the purposes of advancing a political, religious, racial or ideological cause.�4 The Terrorism Prevention and Investigation Measures Act 2011 is a welcome amendment that repeals and replaces the Control Orders in the Prevention of Terrorism Act 2005. It thereby ensures greater compatibility with the European Convention on Human Rights, and less intrusion on the human rights of the individuals subject to them than the previous Control Orders, particularly in reference to the potential forced relocation and indefinite length of the Control Orders that have now both been written out of the revised TPIM legislation.5 However there remain several significant problems with TPIMs that mean they are inconsistent with a clear human rights-based counterextremism strategy, and we would argue that the following further amendments need to be implemented in order to strike an appropriate balance between national security and civil liberties: 1) Currently, an individual subject to a TPIMs notice will not face a fair trial, has no opportunity to present evidence to show their innocence, nor has the right to appeal. The British traditions of justice and liberty must be upheld, not least because failing to do so feeds into false extremist narratives. While evidence collected by MI5 may not be appropriate for the traditional criminal justice system, there should be the possibility in the TPIM legislation for fair trial with the presumption of innocence and subsequent review or appeal. The addition of a legal representative for the suspects would help mitigate potential mistakes made by the authorities and would support vulnerable people, as well as making the system more transparent and conformant to the criminal justice system, without compromising national security.

2) TPIMs must have an additional element that comprises deradicalisation, rehabilitation and reintegration where appropriate. In the current situation, an individual subject to a TPIMs notice is under surveillance and investigation for a period of up to two years, often requiring reporting to a police station, and with restrictions on movement, financial assets and association. These negative measures may be deemed necessary on a case-by-case basis, but are a blunt instrument if implemented for two years, then lifted immediately thereafter unless new evidence emerges of involvement in terrorism. A suspect may commit a terrorism-related offence once the TPIMs notice is lifted and the authorities would be unable to prevent such an action unless its planning was identified by the surveillance and investigation team. TPIMs punish suspected intent but do nothing to challenge this intent as there is no element that challenges the underlying ideology or narratives. Integration of 4

Section 1, TERRORISM ACT 2000

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TERRORISM PREVENTION AND INVESTIGATION MEASURES (TPIM) BILL, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/98372/echrth memorandum.pdf, [accessed 19 January, 2014]

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these measures with Channel projects, and the development of new deradicalisation theories and processes to engage with suspects, will make it easier to ascertain a truer sense of an individual’s intent to commit a terrorism-related offence. These measures will also help prevent future acts of terrorism once the two-year expiry date has passed, without the need for further negative measures. Given that movement and association are already limited under TPIMs, the addition of pastoral visits would be a welcome addition.

Two high-profile disappearances of those under TPIMs notices have called into question the effectiveness of the measures. While particular details of these two cases are unavailable, and commenting on the ability of the authorities to monitor individuals is unnecessary, it must be noted that engaging with and rehabilitating the suspects, coupled with a renewed commitment to the rule of law on the part of the authorities, even in terrorism-related cases, may help to prevent such situations. This can be achieved by providing incentives related to the reinstatement of personal freedoms, helping to remove the desire to abscond through the provision of rehumanising pastoral care, and restoring a suspect’s faith in alternative non-violent methods for advancing political, religious or ideological causes within the confines of the law. Likewise, such provisions will also avoid further problems created by the ineffective current system in which suspects who are considered too dangerous to be left uncontrolled one day are relieved of the measures the next day for administrative reasons without any clear ideological change.

If TPIMs must be kept, they will be of limited or no use unless combined with a human rights-based, civil society-supported and joined-up approach to countering extremism, that includes deradicalisation, rehabilitation, reintegration, and the challenging of ideological narratives.

As we advised the Task Force on Countering Extremism that was set up after the Woolwich attacks: After this government’s much needed 2011 reform of its Preventing Violent Extremism Strategy (Prevent), the counter-terrorism brief was rightly split from the work on integration and social cohesion. Whereas the Office for Security and Counter-Terrorism (OSCT) at the Home Office maintained its counter-terrorism portfolio, the Department for Communities and Local Government (CLG) took on board the integration and challenging extremism remit. Eight months after this ‘Prevent’ reform, CLG finally published its ‘integration’ strategy, indicating that a separate plan to ‘outflank extremism’ would be forthcoming. Eighteen months went by – until the murder of Drummer Lee Rigby - and no plan to ‘outflank extremism’ had yet been issued. In light of recent events therefore, it is imperative that the British Government urgently revisits and reclaims responsibility for developing a joined-up counter-extremism strategy to challenge the rising threat of extremisms in the UK6.

By way of a joined-up counter-extremism strategy, we recommend the establishment of a permanent office led by counter-extremism experts, either elected or unelected, acting in a non6

Quilliam Policy Briefing, The Need for a Clear and Consistent Counter-Extremism Strategy Headed by an Expert to Steer the Prime Minister’s Task Force, 4 June 2013, http://www.quilliamfoundation.org/wp/wpcontent/uploads/publications/free/the-need-for-a-clear-and-consistent-counter-extremism-strategy.pdf [accessed 20 January 2014]

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partisan capacity to ensure that the strategy is clear and consistent at judicial, policy and grassroots levels. A permanent office would avoid problems stemming from a lack of continuity, keep the debate above party politics and would ensure that there is an independent and expert source of advice for public officials at every stage of the criminal justice system. If TPIMs are to continue, this office can act as an independent reviewer of all individual cases, provide official deradicalisation and pastoral oversight to the suspects and ensure that a doctrine of ‘legal tolerance’ is adhered to when dealing with extremist views, while promoting a doctrine of ‘civil intolerance’ by implementing counter-extremism training and education at a grassroots level.

We anticipate that the need for TPIMs will increase as the war in Syria continues, as more British Muslims are drawn to fight alongside Al Qaeda-affiliated groups there. While it is possible to charge returning British jihadists using the traditional criminal justice system as they have committed a crime by affiliating with a proscribed terrorist organisation, those with the intent to fight will be difficult to prosecute, and TPIMs notices are most appropriate to prevent future acts of terrorism either in the UK or against British interests abroad. However, we urge that our recommendations for a human rights-based and rehabilitative approach are integrated into TPIMs in order to maintain and improve the effectiveness of these measures.

21 January 2014

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