Editors’ Note: The following post is the latest installment of our weekly feature, “Monday Reflections,” in which a different Just Security editor will take an in-depth look at the big stories from the previous week and/or a look ahead to key developments on the horizon.
The recent spate of ISIS beheadings has added to ongoing British fears of radicalism within Muslim communities and the spectre of jihadists returning from Syria and elsewhere. The reaction has given new impetus to anti-terrorism legislative action.
The key aspects of the Counter-Terrorism and Security Bill, which had its first Parliamentary reading last week, include:
- The power to seize and hold the passports of British and foreign nationals suspected of jihadist activity within or outside the United Kingdom.
- Greater power to security agencies to track individuals engaged in terrorism online.
- The power to limit the exercise of free speech on university campuses and other sites where the UK is concerned that jihadist indoctrination will occur (sections 21 through 27).
- Requirements for schools to undertake anti-extremism teaching to pupils who are feared to be targets of radicalization.
- Making illegal any payment for ransoms to free hostages and barring reimbursement to individuals under insurance policies (section 13).
The bill also revises the Terrorism Prevention and Investigation Measures (TPIMs) which had replaced the Control Order Regime contained in the Prevention of Terrorism Act 2005. These measures currently place restrictions on individuals suspected of “terrorism related activity” but who have not been convicted of terrorism offences. These orders currently enable the Secretary of State to: mandate that a named person remain overnight in a specified residence and/or restrict a person’s movements overnight; restrict travel outside the UK; restrict entry to named places or areas; restrict access to financial services; restrict the possession or use of electronic communications devices; specify rules on access to work or study; require reporting regularly to police stations; require that a person can be photographed; and require that the individual identified co-operate with all the restrictions imposed by a TPIM notice. The changes proposed would would permit relocation, a form of internal exile within the United Kingdom. Specifically, sections 12 and 13 allow that individuals categorized as returning jihadists would be required to reside up to 200 miles away from former associates and family.
The new legislation combines old elements of British anti-terrorism legislation, previously used and then discarded on efficiency or human rights grounds. A good example of the “old” in the legislation is the set of internal exile provisions, which simply reworks older Prevention of Terrorism legislation enabling exclusion orders to contain individuals suspected or previously convicted of terrorism related offences to the territory of Northern Ireland (and away from the mainland UK) during the modern phase of the Northern Ireland conflict.
The fingerprints of borrowing are also easily traced on this legislation, specifically those aspects that facilitate greater powers to track online and electronic activity by suspected terrorists. Here, ongoing discussions between the United States and the United Kingdom have borne particular fruit, as we see a greater synergy (and sharing) of their collective intelligence gathering capacity. This has been facilitated though the United Kingdom-United States of American Agreement on cooperation in signals intelligence (the “Five Eyes” agreement as it is colloquially known involving the UK, the USA, Canada, Australia and New Zealand) as well as through close cooperation enabled by the Counter-Terrorism Committee at the United Nations.
Despite reliance on the old and the borrowed, the legislation is not all recycled and adapted. These new features should concern civil libertarians most. The legislative innovations indicate an emerging and modified pattern of anti-terrorism regulation by the British government. The critical new element is neatly articulated by David Anderson Q.C. the Independent Reviewer of Terrorism Legislation, when he summed up his central concern with the new proposals, asking: “where are the courts?” This new legislation studiously avoids use of the courts, embodying what I have termed elsewhere as “due process exceptionalism” to meet the counterinsurgency needs of the state.
An explanation for this move away from modified criminal justice processes is the rising cost of scrutiny and advocacy in court and detention settings. While exceptional and modified trials were once at the heart of democratic state responses to terrorism, the costs of modified courts are evidenced in protracted Guantanamo litigation, as well as the abandonment of Belmarsh detention arrangements in the UK. Both Guantanamo military commissions and Belmarsh (Guantanamo “lite”) detention have come with significant downsides, most obviously, as I have noted here, the revelation of the secret state which is shown: through the process leading to a defendant’s arrest (through electronic or personal surveillance, or running informers); in the interrogation of the suspect (whether by conducting interrogations or by briefing interrogators); and in the trial process (when there is an attempt to rely upon or to discredit evidence obtained from intelligence sources).
This legislation evidences a new comfort zone, namely an ease of resort to restrictions on liberty, association, expression and privacy by democratic states. This move is an attractive one for many reasons. First, given the existence of generous limitation clauses in the European Convention on Human Rights, the UK has good reason to believe that it has significant leeway in modifying the full exercise of certain derogable rights. Second, the ECHR’s margin of appreciation doctrine, which gives the state “a certain discretion” in its choice of means to address terrorism and other challenges, means that there is an additional comfort zone in the event of legal challenge to such measures. Finally, many of the measures fall neatly into the zone of intelligence gathering. Review of and rationales for gathering such information will be justified on the grounds of national security. The consistent unwillingness of the courts to pierce the veil of security claims means that the state has some degree of assurance that its actions in this domain will be less subject to review than others. Moreover, generous use of Public Interest Immunity Certificates in the United Kingdom gives another layer of protection to the states’ interests as challenge to the new legislation emerges.
Domestic responses to the new legislation has been mixed. The police and security forces have broadly welcomed the new arrival, but civil liberties organizations, and the broader Muslim community have been trenchant in their criticism citing overreach, overreaction and under-consultation as key aspects of what is wrong with the legislation. Anderson has cited a number of concerns, not least that the UK’s plans to stop jihadists returning to the country overplays the threat and that the dangerous scenarios claimed are “nothing as dramatic” as the Prime Minister and others purport.
While many commentators may view the new legislation as merely piling up more terrorism provisions onto an existing mountain of British anti-terrorism laws, I suggest there are genuinely troubling elements to this particular departure. It augers a new insidiousness to anti-terrorism legislation, a creep of regulation into the most mundane and fundamental elements of suspects’ lives, and an entrenchment of the security state—based on the claim to grand threat from a range of terrorist actors. We have seen these claims before in the UK, as well as the argument that such new legislation would only be applied to the “most dangerous.” In practice, the “cordon sanitaire” argument never lasted very long for emergency legislation in the UK. Invariably, intrusive measures made speedy exchange with the ordinary criminal law. For example, the initial terrorism-related limitations on the right to silence (also geographically limited to Northern Ireland) quickly extended into the ordinary law of the law of the land. We should expect smooth exchange between the new provisions of the Counter-Terrorism and Security Bill and the regular rules. We all then, have good reason to view this British legislation with unease.