Since 9/11 the reluctance of the Government to adhere to the normal tenets of human rights-protection and the rule of law in counter-terrorism measures has been demonstrated with a fairly depressing repetitiveness. This is particularly clear in relation to pre-charge restrictions placed individuals thought to be involved in terrorist activities.
In the immediate aftermath of 9/11 the rapidly enacted Anti-Terrorism Crime and Security Act of 2001 (‘ATCSA’) implemented a policy of executive detention of non-UK nationals (s.23). Little over four years later the House of Lords handed down the oft-cited and widely commented upon judgment in A v Secretary of State for the Home Department (‘A’) holding that the power was incompatible with the ECHR. The judgment was seen by some as striking a first, and significant, blow against the Government’s counter-terrorism agenda and as sending a clear rights-enforcing message. Through the subsequent enactment of the Prevention of Terrorism Act 2005 the Government replaced executive detention with control orders (ss.1-9). This regime remedied one source of criticism of executive detention by allowing individuals of any nationality to be detained. However, whilst the new powers avoided the directly discriminatory nature of executive detention in so-doing they broadened the potential applicability of other of its rights-infringing characteristics, which were retained within the new regime. Control order restrictions cause significant disruption to the individual controlee’s life with damaging long-term effects, as illustrated by Cerie Bullivant’s account of being subject to a control order. As a result the control orders regime has been criticised by Amnesty International, Human Rights Watch, Liberty and other human rights organisations.
Two persistent themes within the criticisms of both executive detention and the control orders regime are the process by which the measures are imposed; and the expansive powers possessed by the secretary of state in terms of the restrictions that can be imposed on individuals. The parallel nature of these criticisms demonstrates the continuities between control orders and executive detention. Thus, while the control orders were meant to represent a solution to the rights-infringing nature of executive detention in turn they have been condemned on comparable grounds.
In January 2011 new measures, were announced as a replacement for control orders from the end of 2011, in line with the Coalition Programme for Government (p.24) and as a response to the conclusions and recommendations of a review carried out by the Human Rights Joint Committee. The terrorism prevention and investigation measures (‘TPIMs’) were described by Theresa May as offering a more focused and targeted regime of counter-terrorism powers and as able to restore freedoms while protecting the public (Hansard, 26 January 2011, cc.306-08). On 23 May 2011 the Terrorism Prevention and Investigation Measures Bill was introduced into the House of Commons. The Home Office announcement promised that the regime would be much clearer in terms of what restrictions could be imposed and that these would have to be proportionate and clearly justified to ensure that they were kept to the minimum necessary to protect the public. In contrast to governmental claims, however, from the outset TPIMs have been dismissed as a mere rebranding of control orders and a direct comparison between control orders and TPIMs reveals the extent of the continuity between the two regimes.
Whilst TPIMs do not curtail individual liberties and rights to the same extent as executive detention they do demonstrate a continuing readiness to depart from the normal processes of the criminal justice system and fail to connect use of the powers with the need for an on-going criminal investigation. At the same time the continuation such measures overlooks arguments concerning their lack of utility in countering terrorism, as well as the negative impacts that they can have, in terms of community cohesion and cooperation with the police. Indeed, one of the key substantive advantages of TPIMs over control orders, resulting from the Government’s decision to remove provisions from the Bill which allowed for internal exile, was compromised by a number of amendments to the Bill tabled by the Government along with the publication of an Enhanced Terrorism Prevention and Investigation Measures Bill on 1 September 2011. The Enhanced TPIMs Bill provides for a range of additional restrictions to be imposed on individuals. These could include internal relocation; isolated residence; longer curfews; bans on communications without the Secretary of State’s consent; restrictions on associates; and bans on leaving a designated locality. Alongside the new Bill amendments proposed to the main TPIMs Bill sought to afford the Home Secretary power to impose enhanced TPIMs in exceptional circumstances while Parliament is not sitting.
On 5th September the Government’s proposals were debated in the House of Commons and the TPIMs Bill was passed, but the attempt to insert the enhanced provisions was defeated by 314 votes to 213. Despite this Governmental defeat concerns relating to the impact of TPIMs and enhanced TPIMs on individual rights and the rule of law remain. In particular, whilst the enhanced powers are restricted to circumstances in which a ‘very serious terrorist risk’ exists time and again counter-terrorism powers that are intended for narrow, exceptional application have come to be deployed more widely and frequently than originally intended. Even if such normalisation of these exceptional powers is avoided their failure to adhere to the normal processes of the criminal justice system suggest that perhaps we have not come so very far from the rights-infringing practices and contempt for the rule of law condemned in relation to executive detention.
In much that same way that control orders represented a continuation of many of the rights-infringing excesses of the executive detention power the Government to some extent has undertaken a similar relabeling and repackaging process with control orders. A number of aspects of the TPIMs and enhanced TPIMs regimes suggest that in the ten years since the passage of the ATCSA we have failed to make much significant progress in valuing and protecting individual rights and the rule of law over the enactment of national security-related measures that are better suited to appeasing popular fear of terrorist attack than identifying and prosecuting individuals involved in terrorism. The names and political allegiances of those proposing the measures have changed but fundamentally the legislative provisions appear to be distinctly wedded to infringing civil liberties and human rights in an attempt to secure better protection against terrorist attacks, while potentially fuelling the directly opposite effect.
Comments