UK TERRORISM ANALYSIS No. 3, May 2012
Re-Balancing Security and Justice The Reform of UK Counter-Terrorism Legislation Issue Contributors to UKTA No. 3 Alex Carlile Michael Clarke Tobias Feakin Margaret Gilmore Benedict Wilkinson
UK Terrorism Analysis This is a series of online briefings aimed at offering assessments of the threat we face and the policy options before us. 2012 is likely to set the scene for security policy as the terrorism threat evolves and the international environment changes.
Through the forthcoming Justice and Security Bill, the UK Government is attempting to address the imbalance between effective security operations and civil liberties.
Context Since 2000, the UK has introduced a series of legislation to deal with the changing terrorism threat. Whilst this has helped counter-terrorism agencies, it also generates debate about the need to balance the security of the public with civil liberties. The current Coalition Government’s Justice and Security Bill is the latest attempt to address the issue.
Key Findings ¾¾
The balance between what is legally and politically acceptable in countering the terrorist threat is unlikely to be achieved by the Government in the immediate future
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Arguments that Closed Material Procedures may not be compatible with European human rights law are not supported by specific case law. Instead, their introduction could represent an optimal legal compromise between security and liberality
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The key political question for the Government to address is how far intelligence agencies should keep secrets to themselves and at what point greater transparency should indeed be demanded
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In spite of the decision that no further appeals will be allowed, the ‘Abu Qatada’ case nevertheless indicates a methodological failure of the UK’s current approach to deportation. An independently scrutinised process should be put in place to deal with similarly difficult cases in the future
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The success of Terrorism Prevention and Investigation Measures (which replaces Control Orders) depends on close monitoring of applications and the allocation of sufficient resources.
Previous UKTA Reports No. 1: Counter-Terrorism in an Olympic Year February 2012 No. 2: Global Jihad Sustained Through Africa April 2012 www.rusi.org/ukta See also: www.rusi.org/terrorism
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Introduction: Legal Balances and Political Balances
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he British approach to counter-terrorism is unashamedly based on intelligence-led policing; and in the decade since the 9/11 attacks of 2001 this has proved to be successful. RUSI’s terrorism database records some forty-three potential plots or significant incidents arising from jihadist terrorism, and only one plot – the London bombings of 2005 – has been successfully carried through. The intensive use of intelligence agencies in policing counterterrorism inevitably raises the need to balance the security of the public with civil liberties. This is constantly debated. But there is another balance to be struck which this briefing addresses; that between what is legally, and what is politically, acceptable at any given time. The Justice and Security Bill announced in the 2012 Queen’s Speech is not likely to solve that particular conundrum. In this UK Terrorism Analysis, Lord Carlile, as the former Independent Reviewer of Terrorism Legislation, indicates that the public can be reassured that the law has been properly applied in modern counter-terrorism and that the law has itself struck an appropriate balance between security and civil liberty. Hasty legislation normally has to be amended and adjusted, as indeed it has been. Over the last decade, however, British Governments have not genuinely been harried by the European Convention on Human Rights (ECHR), and contrary to popular belief, even the controversial control orders have not left the UK in breach of it – there is still no case law that indicates such. The UK can live within the ECHR even in times of severe terrorist threat. The Government’s current legislative proposals to institute Closed Material Procedures (CMPs) in certain, particular, cases may be regarded as an optimal legal compromise between security and liberality that would bring the security services more proactively into legal proceedings without compromising their sources. Margaret Gilmore, as former BBC home affairs correspondent, examines the issue from a predominantly political perspective. In this context it is likely that, however well it balances in a legal sense, the Justice and Security Bill will encounter political opposition right up to cabinet level – including the Deputy Prime Minister – in a way that will either strain the Coalition Government, or lead to a watering down of some of its key provisions. There have been too many recent, high profile cases to make these proposals anything other than politically controversial. Certainly, they are not regarded across the political spectrum as merely a tidying up and clarification exercise; they are seen by many as another encroachment by the security services into the law’s ability to uphold civil liberties.
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This is not a new phenomenon. Tobias Feakin and Benedict Wilkinson analyse how these legal/political compromises have been made over a longer period. What is different now, compared to the years of the Northern Ireland emergency, is that the public appears to be more sceptical about the balance; less trusting of the law, more inclined to believe that the security services have too much influence over the process and that civil liberties are being constantly eroded by new counter-terrorist legislation. Certainly, as the table demonstrates, legislation since 2001 has been busy and frequently amended – not always in one direction. The Government hopes that its legislation for the coming Parliament will resolve some of these issues. It attempts to solve the knotty problem of allowing the intelligence agencies to fight a case through the courts on what they believe may be strong evidence of terrorist behaviour, without compromising national security, or the trust of allies, through unwilling disclosures. But if the legislation is successful in maintaining that balance, the political controversy surrounding it is an indication of how far the Government has still to go to re-calibrate the balance between what is legally justified and what is politically acceptable. Professor Michael Clarke is Director General of RUSI Practitioner View
Lord Alex Carlile Former Independent Review of Terrorism Legislation
The Legislative Landscape
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USI’s first UK Terrorism Analysis (UKTA) paper considered the challenge of the Olympic Games. The special measures for the Games are now evident even upon the rooftops of London. Within a very few months the great festival of sport will be over and, hopefully with a feeling of success, we shall be left examining the security lessons learned. A key issue will be a re-examination of the legislation in place, and whether changes are needed or justified. This debate will coincide with the heart of the new Parliamentary session. I was asked to become the UK’s Independent Reviewer of Terrorism Legislation on 11 September 2001, a few hours before 9/11 unfolded in New York. I continued until I was succeeded in February 2011 by the excellent David Anderson QC, who has already made a significant mark. What started as a calm September day quickly was transformed into a political crisis, with the understandable need to legislate in haste to protect the UK and our allies from similar events.
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Legislation in haste rarely produces durable results. This can certainly be said of parts of the Anti-Terrorism Crime and Security Act 2001, which introduced the so-called Belmarsh provisions. After being struck down by the Courts, they were replaced in the Prevention of Terrorism Act 2005 by Control Orders. In principle these were proportionate and reasonable, and were consistently found to be so by the Courts. On 31 October 2007, the House of Lords handed down judgments in the cases of Secretary of State for the Home Department v. JJ and others (FC) [2007] UKHL 45; Secretary of State for the Home Department v. MB (FC) [2007] UKHL 46; and, Secretary of State for the Home Department Respondent v. E and another [2007] UKHL 47. The judgments considered a number of issues including whether the cumulative impact of the obligations under the control orders amounted to a deprivation of liberty within the meaning of article 5(1) of the European Convention on Human Rights (ECHR); and whether the procedures provided were compatible with ECHR Article 6 where they result in the controlled person in essence being unaware of some important evidence in the case made against him (albeit there being a Special Advocate). The Lords ruled that the non-derogating control orders did not amount to a criminal charge for the purposes of article 6 of the Convention. Lord Bingham said: ‘Parliament has gone to some lengths to avoid a procedure which crosses the criminal boundary: there is no assertion of criminal conduct, only a foundation of suspicion; no identification of any specific criminal offence is provided for; the order made is preventative in purpose, not punitive or retributive; and the obligation imposed must be no more restrictive than are judged necessary to achieve the preventative object of the order. They became the target of often poorly informed political campaigning.’
No criticism can be drawn from the Control Orders cases about procedures involving the use of special advocates, in circumstances where the individual under consideration is not present where national security sensitive evidence is being given. The closed procedures in which special advocates have been involved are clearly within fair trial standards as envisaged by the ECHR. However, often ill-informed political opinion took over. As a result, Control Orders were replaced in the Terrorism Prevention and Investigation Measures Act 2011 by what have become known as TPIMs. Although TPIMs are a somewhat diluted version of Control orders, in particular omitting the valuable requirement of relocation for the most troubling cases, they are in most respects the same rose
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by any other name. They retain the vital elements of limitation on activity and association. It should not be forgotten that they are applied only to those whom a senior Court has found to be rightly regarded as terrorists with the capacity to cause serious damage to national security, which in real terms means injury to potentially large numbers of innocent people. A predictable reaction has occurred. For example the Leader of the Green Party Caroline Lucas MP said ‘[TPIMS] rebrands the worst aspects of that failed [Control Orders] regime ... they are imposed by the executive, not by a court of law’.1 Like many, Ms Lucas has failed to analyse the strong effect of automatic judicial scrutiny of the measures, and the many significant changes made by the courts to them in individual cases. A similar political atmosphere awaits forthcoming debates on the Coalition Government’s new proposals on national security material in civil cases, which have been trailed as the major component of a new Justice and Security Bill. The Green paper of October 2011 sought solutions to problems that had emerged in civil claims against the government arising from alleged tortious activities of UK officials abroad. Public Interest Immunity [PII] is available for national security in such cases: however, if the result of refusing disclosure of documents means that there cannot be a fair hearing, the Government has little option but to settle the proceedings. This can result in the unwelcome outcome of terrorists being paid large sums of taxpayers’ money. The principal solution suggested by the Green paper was the introduction of Closed Material Procedures [CMPs]. The Government proposed introducing legislation to make CMPs more widely available in civil proceedings, for use in the rare instances in which legislative material is relevant to the case. As with TPIMs hearings, a Special Advocate would be provided in all such cases. He/she would see all the closed material, and would be able to make representations in the interests of the individual litigant concerned. This process has proved remarkably effective in Control Orders and TPIMs cases. It was also proposed that CMPs might be introduced for inquests, in Great Britain and also in Northern Ireland (where historic and sometimes security sensitive inquests are continuing). The influential Parliamentary Joint Committee on Human Rights (JCHR) reported on the issue on 5 April 2012. They accepted submission by the special advocates representatives that CMPs are ‘inherently unfair’. The JCHR concluded that PII procedures are
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broadly adequate, though they proposed legislative clarification of PII. The Committee has proposed a presumption against disclosure of UK and foreign intelligence material, rebuttable only by compelling reasons. The Chairman Dr Hywel Francis MP said: ‘We have come to the clear view that the way to meet what turns out to be the Government’s narrow concern is to bring forward legislation to clarify how PII applies to national security-sensitive information’. In a supplementary memorandum to the JCHR dated 19 March 2012 the Independent Reviewer David Anderson said of Judicial Review cases: ‘It seems to me difficult ... to quarrel with the need to have a CMP available at least as an option for such cases, whether by placing them within the SIAC regime (where cases of a similar nature are routinely heard by CMP) or by acknowledging or introducing a CMP procedure within the judicial review context. I make no comment on how many of these cases would require a CMP: but it is likely that some will do so.’
On damages claims, he added: ‘It is however apparent to me, after inspecting the files I have been shown and speaking to counsel involved, that under the current law there are liable to be cases that are settled ... which, had a CMP been available, would have been fought to a conclusion. This is an undesirable state of affairs .... We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of a CMP in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought’.
I agree with those observations, made after a careful examination of all the available evidence. CMPs offer no injustice, whereas the absence of them may well lead to injustice to intelligence agencies, and thereby to the public purse. I have no doubt that there will be presented in both Houses of Parliament an argument that CMPs are not ECHR compatible. However, there is no case law to support that sweeping proposition – something one would have expected to arise from the many Control orders and (now) TPIMs cases in which every possible legal point has been discussed.
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There remains too the very vexed question of the deportation of terrorist suspects, starkly illustrated by the Abu Qatada case. In my view the cause of the fiasco in that case was methodological failure in the approach to such deportations generically. The Government should now follow the advice it has received in the past â&#x20AC;&#x201C; to set up an independently chaired and scrutinised process for dealing with such cases, country by country and, where necessary, individual by individual. The Labour Party has always taken a considered and responsible view of national security. In government they were placed in the eye of the storm, especially in 2001 and as a result of the London events of July 2005. They made some mistakes, but in this difficult area of policy that was inevitable and has continued. In their Party are senior members with a profound understanding of the issues, a notable example being Paul Goggins MP, who served as a distinguished Northern Ireland Security Minister. I trust that they will heed the advice of such senior figures, and will not play political games with these important issues. The responsibility of some back-benchers in the two coalition parties may be more problematic. Having observed the changing counter-terrorism picture closely over the past eleven years, I am sure that some dramatic steps have been taken to weaken violent jihadists. The deaths of Osama Bin Laden and other leaders have undoubtedly weakened their capacity to commit atrocities around the world. On the other hand, the spread of Islamist terrorism to Somalia, Nigeria and elsewhere, together with continuing arrests and trials in the UK, reminds us that we must remain extremely vigilant. Counter-terrorism legislation should remain tough and fully protective of the public - a mailed fist, albeit in a velvet glove of procedural fairness and substantial justice. The first duty of government is to protect our national security, a focus that should not be blunted. Lord Carlile of Berriew CBE QC was the UKâ&#x20AC;&#x2122;s Independent Reviewer of Terrorism Legislation between 2001-2011. NOTE 1. Caroline Lucas <www.carolinelucas.com/cl/media/indefensible-tpims-arecontr>
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Key UK Counter-Terrorism Legislation Since 9/11 Legislation Anti-Terrorism, Crime and Security Act 2001
Criminal and Justice Act 2003 Prevention of Terrorism Act 2005
Terrorism Act 2006
Main provisions/changes introduced Enables the Home Secretary to indefinitely detain, without charge or trial, foreign nationals suspected of terrorism l Limits the appeals of foreign nationals detained under these circumstances to a closed special immigration commission l Grants police and security services the power to ask public bodies to disclose personal records during terrorism and criminal investigations l Enables communication service providers to retain data that can be accessed by law agencies investigating terrorism activities l
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Amends Section 41 of Terrorism Act 2000, extending pre-charge detention from a period of seven days to fourteen days Introduced in response to a December 2004 law lords ruling the detention of foreign nationals without trial as unlawful. Creates control orders, imposed by Home Secretary against individuals suspected of involvement in terrorism-related activities that cannot be put on trial or deported. Restrictions imposed under such regime include: house arrest and restriction on place of residence. It also allows control order proceedings to be held in a closed session
Extends pre-charge detention to twenty-eight days Creates new offences such as: encouragement or ‘glorification’ of terrorism or dissemination, distribution or transmission of terrorist publications l Greater powers for Home Secretary to ban groups glorifying terrorism l l
Counter-Terrorism Act 2008
The original Bill included some controversial measures that were dropped by the time the Act became law. Among these: plans to create a ‘reserved power’ for Home Secretary to extend maximum pre-charge detention period to forty-two days (after a failed proposal for ninety days presented in 2005); use of intercept evidence in terrorism cases; provision for inquests and inquiries to be held without a jury in interest of national security. l Enables post-charge questioning of terror suspects l Introduces enhanced sentencing of offenders who commit offences with terrorist connection l Enables the use of intercept evidence in certain specified proceedings (i.e., assets freezing) l
Key recommendations include: Review of Counter-Terrorism l Replacement of control orders with Terrorism Prevention and Investigation Measures (TPIMs), designed to be less intrusive and more focused and Security l Maximum pre-charge detention period reduced to fourteen days; it could Powers temporarily be increased to twenty-eight days in extraordinary circumstances
(January 2011)
Terrorism Act 2000 (Remedial) Order 2011
Section 44 of Terrorism Act 2000 to be repealed and replaced by a more tightly defined power enabling stop and search only in response to specific intelligence on terrorist attack l Tighter control on use of Regulatory and Investigatory Power Act 2000 (RIPA) l
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Provides for the redefinition of stop and search power. New tighter regime to come into force in March 2011
(March 2011)
Terrorism Prevention and Investigation Measures Bill
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Formally abolishes Control Orders regime. New TPIMs regime to come into force in January 2012
(December 2011)
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Allowing Secret Evidence in Court
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he use of secret evidence is one of the trickiest legal issues facing the courts and Government today. It is controversial because in dealing with secret evidence a line must be drawn in balancing civil liberties against national security, and there is disagreement about where that line should be drawn. Although human rights campaigners want less secrecy, the Government wants more, hence its decision to introduce changes in the law. In an age when modern technology makes it increasingly difficult for secrets to be kept, society seems to want more transparency. Yet the intelligence agencies – which are often legally protected from disclosure and the least publicly accountable part of the State – seem slow and even reluctant at times to respond to this. The question is how far should they be trusted with their secrets, and at what point should the courts, the State or the public demand transparency. New laws, announced in the Queen’s Speech on May 9 2012 will allow more secret material to be used in civil court cases. They will be detailed in a Justice and Security Bill (to be published later in May 2012) which will also include tougher oversight and Parliamentary scrutiny of the intelligence agencies and of the Parliamentary Intelligence and Security Committee. The decision to allow more secret evidence to be used in civil court cases should aid UK counter-terrorism efforts since it is not designed to put more hearings behind closed doors, but to allow more intelligence to be used per se, in terrorist cases. The amount of intelligence heard in public will remain the same – but the amount allowed to be used as evidence in private, will increase. In other words there will not be a decrease in the number of cases heard publicly, but there should be an increase in the number of cases heard in secret. Civil rights campaigners who want more transparency will not like this although they will be relieved that earlier plans for even tougher secrecy rules have been watered down. And the Bill also includes elements which they will welcome – not least because there will be tougher and more transparent scrutiny of the intelligence agencies, long accused of being allowed to clandestinely operate under the protection of the secrecy surrounding national security. Cold War-era oversight rules are to be overhauled and modernised. As a result we will hear much more about the work of the intelligence agencies, and are likely to see those who lead them, defending themselves publicly in future.
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Civil Court Challenges The new laws outlined in the Bill will apply to the civil courts only. They arise from a dilemma centred around a number of cases that have been brought in the civil courts by people originally accused of terrorism. They sued the Government for compensation, accusing the intelligence agencies of alleged complicity in what they claim was their wrongful incarceration and in some cases torture. The Government did not defend itself because to do so, it contended, would have forced it under current law to disclose intelligence information which could undermine the national security of the UK. Instead the cases were never fully concluded. They were settled out of court with (in some cases) huge payouts by the Government. This is not satisfactory. It has left the taxpayer out of pocket, with accusations made against the intelligence agencies which remain untested. In 2010 for example, the UK agreed to pay some £20 million1 to sixteen former Guantanamo Bay detainees, to end a series of civil cases over torture allegations during which secret material had been a major factor. According to the Justice and Security Green Paper – published in October 2011,2 ahead of the anticipated Justice and Security Bill – the government and intelligence agencies, faced with the choice of being forced to disclose sensitive information in court, chose instead to drop the cases, pay compensation, and free suspects who in some instances they would rather pursue. The Government argued that allowing the status quo to continue left open the increasing risk that the taxpayer would have to foot the bill to settle future cases that the intelligence agencies felt they could not defend. In 2010 the case of Binyam Mohamed, a British citizen held at Guantanamo Bay from 2004 to 2009, was widely publicised, in part because some of the evidence he was using to claim compensation, came from US intelligence sources. He claimed in a civil court that he had been tortured while in US custody under the ‘extraordinary rendition’ programme and that MI5 and MI6 were complicit in this. In 2010 the Court of Appeal forced the disclosure of the secret US intelligence.3 The US was deeply unhappy to see classified intelligence which it had passed to its UK counterparts in confidence, openly published at the decree of a British court. MI5 was equally upset fearing it would not in future be trusted with such information – intelligence which it claims may be critical in keeping the UK safe. The Government believes new laws allowing more access to secret
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material, would enable them in future to complete civil cases like those mentioned above. Intelligence agencies will be able to defend themselves more often in civil courts. They already have the use of Public Interest Immunity (PII) which prevents disclosure of sensitive information. But once PII is in place it prevents any consideration in the court case of the sensitive information withheld. Instead the Government wants the ability to use Closed Material Procedures (CMPs) in a limited number of civil cases. This will allow the sensitive material to form part of the deliberations in the case, in other words to be used as evidence rather than ignored. CMPs have been used very occasionally in civil cases in the past – but in a test case brought in 2011 by some of the Guantanamo detainees, the Supreme Court ruled they were not actually permitted under current civil law;4 hence the new Bill which will change the law to allow sensitive, secret evidence to be used more widely, under the umbrella of CMPs. Less or More Secrecy? The main difference between Public Interest Immunity and Closed Material Procedures is that when PII is invoked, the sensitive evidence in question becomes inadmissible and it cannot then be used to determine any part of the case; whereas if CMPs are introduced the material could be used by the judge to help decide the outcome. But in the case of CMPs it would not have to be shown to the original defendant, who instead would have to rely on a Special Advocate – a security cleared lawyer – to see the material and argue on his behalf (just as Special Advocates are used to determine Control Order cases in the SIAC Special immigration courts). The Parliamentary Joint Committee on Human Rights (JCHR) explains: ‘In PII, where the judicial balance comes out against disclosure the material is excluded altogether from the case; in CMP, material which the court agrees should be ‘closed’ is admissible: it is seen by the court and can be relied on by one party’.5
The Government plans to use CMPs in a limited number of civil cases in future. It believes the public will support the move. Its Independent Reviewer of Terrorism Legislation David Anderson, QC, reluctantly agrees. In March 2012 he told the Joint Committee on Human Rights: ‘There is a small but indeterminate category of national-security related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP—for all its inadequacies—should exist.’
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The Chairman of the Intelligence and Security Committee (ISC), the Rt. Hon. Sir Malcolm Rifkind also shares this view. ‘It is preferable that cases are considered behind closed doors than not at all’ he said in April 2012, adding that ‘any extra secrecy in court should nevertheless be narrowly focused on protecting the lives and methodology of those who work in very dangerous situations to protect the UK; and on protecting foreign intelligence material which has been provided by another country on the strict promise of confidentiality.’6 But others among lawyers, politicians and civil libertarians disagree. The Parliamentary JCHR7 produced a damning report in which it condemned proposals for more secrecy as ‘a radical departure from our longstanding traditions of open justice and fairness’. The Deputy Prime Minister and Liberal Democrat leader Nick Clegg signalled he would not support a move to greater secrecy. And Kate Allen, UK Director of Amnesty International has also argued against: ‘Regrettably, the proposals ……appear designed to further entrench secrecy in the justice system. Secrecy of this sort has the potential to undermine the fair administration of justice and allow the government to shield itself from adequate scrutiny and criticism of its human rights record.’8
Ministers however, argue that a law allowing more secrecy would bring more trials to conclusion bringing greater justice, fairness and transparency. Nevertheless it has moderated the plans it originally published in the Green Paper, as the scale of objections became clear. The Bill heralded in the Queen’s Speech is likely to allow for Closed Material Procedures in strictly defined and limited civil court cases. Earlier plans to extend this power to inquests, and to give further powers to Ministers rather than judges, are likely to be shelved. This is partly through lack of support from the Liberal Democrats, but also because the inquests into the 7 July 2005 London bomb attacks proved that the traditional caution shown by British intelligence agencies on secrecy is not always justified. The Coroner, a Senior High Court Judge, allowed repeated challenges to Home Office and Security Service efforts to protect intelligence secrets during the inquests. Pushing the boundaries on transparency, she insisted on disclosure unless it was absolutely clear to her that such disclosure would undermine national security. She did not leave that judgement entirely with the intelligence agencies. The result was that far more intelligence material than was originally offered was brought into open court, along with a
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raft of new revelations on the modus operandi of both MI5 and the terrorists. Criticisms aimed at MI5 were scrutinised, dealt with publicly, and in the main, resolved. New Clarification of the law When the new Security and Justice Bill is published imminently, it will also include greater clarification of secrecy laws – in particular on the use of PIIs. This follows a call in the JCHR response in April 2012, [5] to the Government’s Green Paper, for more focus. There are likely to be statutory presumptions against disclosure of foreign intelligence material for example, listing express factors to which the court must have regard when balancing the competing public interests. There may be a new requirement that consideration be given to greater use of Redactions, and to Closed Hearing which would not be open to the public but would be heard by all sides directly involved in a case. And it will detail modernisation and tougher scrutiny of the Intelligence and Security Committee which oversees the Security Agencies. The Government should be commended for tackling the complexities of the use of secret evidence in court and for clarifying the law – a task which will always bring criticism from those who believe the UK should be working to put more secret evidence in the open. Given that the UK’s political system is centred on democratic principles, ministers and courts must get the balance right between the need for open justice and the need to retain a secret security service that is able to operate effectively to keep us safe. This new Bill brings new challenges for counter-terrorism officers. Increased scrutiny and transparency will force the intelligence agencies to accept that in a modern age they cannot hide under a cloak of secrecy unless a strong case has been made in the interests of national security. It will be essential in future that where secret evidence is introduced, safeguards are in place to ensure the reasons for keeping it secret are solid. Margaret Gilmore is a Senior Research Fellow at RUSI and former Home Affairs Correspondent at the BBC.
NOTES 1. ‘UK to protect foreign secret material from courts’, Thomson Reuters, 10 October 2011, available at <http://newsandinsight.thomsonreuters.com/Legal/ News/2011/10_-_October/UK_to_protect_foreign_secret_material_from_ courts/>. 2. HM Government, Justice and Security Green Paper, Cm8194 (London: The Stationery Office, October 2011).
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3. Duncan Gardham and Gordon Rayner, ‘MI5 “knew Guantanamo detainee Binyam Mohamed was being tortured”’, Daily Telegraph, 10 February 2010. 4. Al Rawi and others (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34. <http://ukscblog.com/new-judgment-al-rawi-ors-v-the-security-service-ors2011-uksc-35>. 5. The Joint Committee on Human Rights (JCHR), ‘Human Rights Committee publishes report on Justice and Security Green Paper’ <http://www.parliament. uk/business/committees/committees-a-z/joint-select/human-rights-committee/news/justice-and-security-green-paper-report/>. 6. Intelligence and Security Committee Press Release, 27 March 2012, <https:// docs.google.com/viewer?a=v&pid=sites&srcid=aW5kZXBlbmRlbnQuZ292LnVrf GlzY3xneDo0ZDdhZjI5Y2ZlNDk5MTY1>. 7. The Joint Committee on Human Rights (JCHR), Op. Cit. [8]Amnesty International UK, ‘Ken Clarke’s Justice and Security Green Paper criticised over “secretive process”’ , <http://www.amnesty.org.uk/news_details. asp?NewsID=19765>.
Are we Really Scrapping Control Orders?
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n the last decade, UK legislation surrounding terrorism and the way we respond to the threat has snowballed. Under the Labour Government, legislation was used as a central weapon in the battle against terrorism. Essentially, new laws expanded the state’s ability to limit the operations of terrorist organisations and to pre-empt extremist violence by criminalising a range of actions. Recent debates about the requirement for, and suitability of, a number of measures instituted by the Labour Government have become fertile territory for political point-scoring, continuing a trend for debates concerning counter-terrorist legislation to be politically laden, which can be at the expense of a rational public discussion about why some measures are required. The Terrorism Act 2000 marked a critical turning point in the UK’s legislative response to shifting terrorist threats.1 Paramilitary ceasefires in Northern Ireland and the Good Friday Agreement of 1998 had signalled an end to the terrorist threat which emanated from Northern Ireland. In their place, a ‘new’ Islamist-inspired terrorism was beginning to emerge as a credible threat to UK security. The Act criminalised a range of activities in response to the changing threat. It also laid out much of the legislation which has caused recent debate in political, academic and journalistic circles – specifically in relation to providing the Police with wider stop and search powers, and extending the ‘detention without charge’ period up to seven days, which was increased to fourteen
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days by the Criminal Justice Act 2003.2 In the aftermath of 9/11, Tony Blair, the then Prime Minister, rapidly introduced new legislation to deal with the terrorist threat posed by Al-Qa’ida and its affiliates. The primary concerns of the Anti-Terrorism, Crime and Security Act (ATCSA) were to empower the authorities to disrupt and suffocate terrorist funding and to make provision for dealing with those foreign nationals who were suspected of terrorist activity but whose home countries had poor human rights records which prevented their deportation.3 ATCSA allowed the Home Secretary to detain those foreign nationals, indefinitely and without trial. A Privy Counsellor Review Committee condemned the system, arguing that it lacked safeguards and, more importantly, that it failed suitably to deal with those UK nationals who were suspected of committing, financing or inciting terrorist activity.4 In response, new legislation was created in the form of the Prevention of Terrorism Act 2005, which created two types of Control Orders, non-derogating and derogating: of which the latter allowed for the infringement of the Human Rights Act 1998 in a public emergency.5 Control Orders, although less contentious than the ‘detention without trial’ legislation which they replaced, continued to cause controversy and debate and were a major focus of the review of terrorism legislation that the government undertook during 2010/11. Control Orders are a system of restrictions on an individual’s access to communications technology, moving their physical location in the country, to bans on who that person can meet and home curfews. This was criticised extensively by civil liberties campaigners who felt that ‘the innocent may be punished without a fair hearing’.6 The opposed campaigners objected to how essentially a Control Order was taken out against an individual if they were deemed to be a threat to national security. The real problem, argued civil liberties groups, was that the evidence upon which this judgement had been taken was not something that could be put into the public domain because it could reveal the secret techniques that the intelligence agency use to investigate people who threaten UK national security, not an easy position to defend. From Control Orders to Terrorism Prevention and Investigation Measures-Lesser of two evils? A central element of policy of both the Conservatives and the Liberal Democrats prior to their election in 2010 was the pledge to review the raft of counter-terrorism legislation which the previous government had introduced. Both parties felt that the measures provided within the legislation had taken on a more draconian shape that was needed and was acceptable within a liberal democracy. However, following the initial announcement of the review of
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legislative powers by the Home Secretary in July 2010, it became quickly clear that there was an extremely heated discussion that took place amongst those politicians involved in the review. This was demonstrated by the lack of wholesale change in legislation that most of them envisaged would be possible. In October 2010, Lord Macdonald, who had independent oversight of the review, was rebuked by the Home Secretary for his opposition to Control Orders. Similarly, senior Coalition politicians, (namely, Ken Clarke, Dominic Grieve and Chris Huhne), argued that retaining Control Orders and a 28-day detention period diluted the Coalition’s commitment to civil liberties.7 What was intended to be a review conducted, according to the Home Secretary, as ‘quickly as possible’, reporting by the end of autumn 2010, became a longer fraught political discussion - one which had, reputedly, led David Cameron to warn that the Coalition Government was ‘heading for a fucking car crash’ over the issue.8 As discussed earlier, the most contentious area of legislation introduced over the past ten years was the use of Control Orders. During their existence approximately fifty of them were issued. In January 2011, the Home Secretary announced that Terrorism Prevention and Investigation Measures (TPIMs) would replace Control Orders. These measures are in essence not too dissimilar to Control Orders and have been criticised for being so. Shami Chakrabarti, Director of Liberty stated that the government had ‘bottled it’ and that ‘control orders are retained and rebranded, if in a slightly lower-fat form’.9 The TPIMs place fewer controls upon a suspect,10 and dispense with the ability to move individuals around the country, indeed suspects who had been moved to different parts of the UK to break up alleged plots have been returned to their home areas. TPIMs would change the nature of the old Control Orders by imposing close human surveillance upon suspects under the jurisdiction of the legislation, rather than the limitation of those individuals’ access to freedom of movement and communication. However, this places increased pressure upon a police service which is already facing major economic cuts and questions about the size and scope of their budgets. Both the police and MI5 were given increased funding in order to impose TPIMs, provide the increased surveillance and be able to recruit another 100 staff. However, we are yet to see how well both services have adapted to the new regime and how effective they will be. Nevertheless, there has been a degree of positivity from the police regarding the ability the TPIMs may give them in collecting further evidence in order to convict a suspect. Speaking in January 2012,
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RE-BALANCING UNBALANCING SECURITY AND THEJUSTICE FORCE
Assistant Commissioner Cressida Dick of the Metropolitan Police told MPs that the new system could lead to more prosecutions: ‘Potentially, operationally, there could be some opportunities provided by the fact that there is some sort of loosening, in some senses, of the restrictions on individuals…That could provide us and we don’t know, it’s too early to say - with some investigative opportunities. We want to bring people to justice wherever we can.’11
However, as yet we are not at a juncture to be able to assess the success or failure of the TPIMs, they simply are too new to be able to judge with sufficient accuracy. Over the course of the next year, it is imperative that the TPIMs are closely monitored so that the flaws can be ironed out. The flow of new legislative powers that have taken place during the 2000s has been met with stern criticism from various aspects of British society, lawyers and analysts who felt that they were helping to alienate aspects of our society, eroding our civil liberties and creating a state which was too security orientated. Whilst some of these criticisms are rightly made, it is sometimes forgotten that these legislative measures were introduced in order to enable the police to do their job in facing an entirely new threat, and there were operational requirements that made these laws necessary. Any government looking to amend the legislation comes face to face with this difficulty, in balancing the operational requirements to fight terrorism presented to them behind closed doors, with the need to provide a free, transparent liberal democratic state. By Dr Tobias Feakin and Benedict Wilkinson Tobias Feakin is a Senior Research Fellow and Director, National Security and Resilience at RUSI. Benedict Wilkinson is an Associate Fellow at RUSI. NOTES 1. The Terrorism Act 2000 2. Ibid. 3. Anti-Terrorism, Crime and Security Act 2001 4. Privy Counsellor Review Committee, Anti-Terrorism, Crime and Security Act 2001 Review, Report (2003-2004 HC 100), §193 and Lord Carlile, Reviews of Pt. IV of the Anti-terrorism, Crime and Security Act 2001 (Home Office, London, 2003-2005). 5. Prevention of Terrorism Act 2005 6. BBC News ‘Theresa May: Control orders to be replaced’, 26 January 2011.
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<http://www.bbc.co.uk/news/uk-12287074>. 7. Protection of Freedom Act 2010-12 8. BBC News, ’Counter-terrorism powers to face government review’, 13 July 2010, <http://www.bbc.co.uk/news/10619419>, ; The Economist, – ‘Dealing with suspected terrorists - Last Orders?’, 6 January, 2010 9. BBC News, ‘Theresa May: Control orders to be replaced’, 26 January 2011. <http://www.bbc.co.uk/news/uk-12287074>. 10. For fuller description of the differences and similarities between Control Orders and TPIMs, see Margaret Gilmore, ‘UK Counter-Terrorism Review’, RUSI. org , 2011<http://www.rusi.org/analysis/commentary/ref:C4D4144CBED9DD/>. 11. Assistant Commissioner Cressida Dick quoted in Dominic Casciani, ‘Terrorism control order system ends at midnight’, BBC News, 25 January 2012 <http://www.bbc.co.uk/news/uk-16702656>.
UK Terrorism Analysis
Editor: Valentina Soria Co-Editor: Saqeb Mueen
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