Executive Measures, Terrorism and National Security

Have the Rules of the Game Changed?

David Bonner

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317138129
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

David Bonner presents an historical and contemporary legal analysis of UK governmental use of executive measures, rather than criminal process, to deal with national security threats. The work examines measures of internment, deportation and restriction on movement deployed in the UK and (along with the imposition of collective punishment) also in three emergencies forming part of its withdrawal from colonial empire: Cyprus, Kenya and Malaya. These situations, along with that of Northern Ireland, are used to probe the strengths and weaknesses of ECHR supervision. It is argued that a new human rights era ushered in by a more confident Court of Human Rights and a more confident national judiciary armed with the HRA 1998, has moved us towards greater judicial scrutiny of the application of these measures - a move away from unfettered and unreviewable executive discretion.

PART I
Introduction and Overview

Chapter 1
Perspectives, Themes and Concepts

What This Book is About

This book examines the use, in the period from 1905 (the enactment of the Aliens Act) to early in 2007, of a variety of executive measures to assist in containing terrorism and to protect national security. The measures focused on are internment (indefinite detention without trial); restriction of movement and internal exile; and exclusion (keeping out) or deportation (ejection) of undesirable foreign nationals from the country. The deployment of such measures is analysed in a variety of contexts, both within the United Kingdom and by its Governmental representatives abroad in seeking to maintain its colonial empire. Part II deals with the use of such powers prior to what has been seen as a watershed in terrorism and the powers needed to counter it: the Al Qaeda attacks on the ‘Twin Towers’ of New York’s World Trade Center, symbol of United States’ economic power. This has become known by its date simply as 9/11. Part II thus examines the deployment of executive measures to deal with the ‘enemy’ at home in the two World Wars (chapter 2); in respect of the violent conflicts surrounding the ‘Irish’ and, latterly, ‘Northern Ireland’ questions (chapter 3); in refusing entry to or removing or deporting ‘undesirable’ aliens (chapter 4); and in the withdrawal from colonial empire. Malaya, Kenya and Cyprus are examined as examples (chapter 5).

It is particularly appropriate to do so at this time since two commentators have noted that counter-terrorism post 9/11in a number of countries makes much more use of executive and even extra-legal measures than ones founded on criminal law and processes.1 This book is thus by no means merely an historical work. It seeks through that examination of the past to contextualize the executive measures currently deployed by the United Kingdom after 9/11. These are delineated in outline here and analysed in depth in Part III. But it also calls into question, at least as regards the United Kingdom, those commentators’ assertion that counter-terrorism prior to 9/11 was more heavily criminal law and process-oriented,2 instead revealing through this book the United Kingdom’s long history of dealing with various manifestations of terrorism at home and in empire to have been heavily dependent on deployment of executive measures. This chapter begins almost at the end of the time period under study. It now considers the terms and implications of a statement made by Prime Minister Blair and subsequent statements on both threat and response by other key players responsible for security.

The Prime Minister’s statement was made not long after the 7 July 2005 terrorist attacks on London’s transport network, which have entered the lexicon simply as 7/7. His message was that the ‘rules of the game’ were changing. The purpose of considering it here and indeed of the book as a whole is to show graphically the link with the past of executive measures deployed as a central part of the United Kingdom’s counter-terrorism strategy after 9/11 and 7/7. The book emphasizes that, in terms of the security measures themselves, the rules of the game have not changed. Rather it is a case of more of the same medicine to treat a very similar problem of armed threats to the State and its inhabitants from non-State or State-sponsored actors. It is suggested here that the only ‘rule of the game’ that clearly has changed is the traditional one that United Kingdom courts faced with the exercise of executive powers in the ‘security’ sphere in reality (whatever sometimes bold rhetoric) give the executive a free hand and legitimate whatever action the executive considers necessary to deal with the threat. The hypothesis advanced here is that in this era of the Human Rights Act 1998 (HRA), United Kingdom courts have started to apply an enhanced level of scrutiny in an area they once characterized as too sensitive for judicial involvement and in which they exercised undue restraint in the face of the marked impact of the powers on the rights and freedoms of individuals. The book also endeavours to place in context recent claims by key actors that the United Kingdom currently faces its greatest threat since the Second World War.

After 7/7: ‘The Rules of the Game are Changing’ But in Which Ways?

At his monthly Press Conference on 5 August 2005, the Prime Minister set out certain measures proposed by the Government to strengthen its counter-terrorism powers and responses. Some of the measures involved the creation of new statutory criminal offences (encouraging terrorism) or extending the scope of others (proscribed organizations and offences of membership and financial, political and material support for such groups). Many, however, were located firmly in the sorts of executive measures examined in this book. They concerned exclusion and deportation from the United Kingdom on public good and security grounds under immigration law. This involved extending the range of behaviours that would bring individual non-citizens within their scope. It was a change in administrative practice which tended, in Government announcements and its counter-terrorist strategy document, misleadingly to be presented as a change in the law itself.3 In addition, through deprivation of citizenship and the ‘right of abode’ – both conferring absolute freedom from exclusion or removal under immigration law – the proposed measures sought to increase the range of ‘undesirable’ individuals holding dual nationality who could be amenable to those powers of exclusion and deportation. Furthermore, the statement envisaged more use of control orders. These were introduced in the Prevention of Terrorism Act 2005 (PTA 2005) after the detention scheme in the Anti-terrorism Crime and Security Act 2001 (ATCSA) had in December 2004 been declared incompatible with Convention Rights by the House of Lords using the HRA,4 one of the Labour Government’s ‘flagship’ constitutional reforms. The HRA is the closest legal instrument in the United Kingdom to the Bills of Rights embodied in most other constitutions, and is examined further later in this chapter.

Control orders enable a range of restrictions to be imposed on the movement and activities of terrorist suspects, including, at the most extreme, house arrest or detention without trial. The Prime Minister made clear that he thought that attitudes and perceptions about the threat faced were changing. He criticized those in Parliament and the Courts he saw as having obstructed action the Government thought necessary. Revealing an inaccurate grasp of the constitutional position under the HRA and the date of enactment of crucial anti-terrorist legislation, he said:

The action I am talking about has in the past been controversial, each tightening of the law has met fierce opposition, regularly we have a defeat in parliament or in the courts. The anti-terrorism legislation of course passed in 2002 after September 11th was declared partially invalid, the successor legislation hotly contested. But for obvious reasons, the mood now is different, people do not talk of scare-mongering, and to be fair the Conservative leadership has responded with a genuine desire to work together for the good of the country, as have the Liberal Democrats. …. we are today signalling a new approach to deportation orders. Let no-one be in any doubt, the rules of the game are changing. … the circumstances of our national security have self-evidently changed.

In the question and answer session, he made a number of notable responses on this theme of change:

whether measures are there administratively or legislatively, I think most people recognise that the climate in which these measures are being taken is somewhat different today. … what has changed in the past four weeks since the attacks on 7th July, is that people now understand that when we warn of the terrorist threat this is not scare–mongering, it’s real … we’ve got to get the law in proper shape. If we can do that it will obviously be sensible for Parliament to begin this process as soon as possible. … I’ve been constantly saying we need to take these measures. I mean I know that people want to gloss over what happened in the months leading up to the election, but I do remind you that we were being fiercely opposed in the measures we had taken and the actual legislation that we had was being struck down. Anyway, you can go back over this many times but I think you have a different situation now … all over Europe there is this gearing up and I think it’s right to do so, but I think to be frank if I had come forward with these measures 3 or 4 months ago, I think it would have been a little bit more difficult.

As regards, the specific context of deportation and human rights, he noted the obstacle posed by Art. 3 of the European Convention of Human Rights (ECHR) which prohibits torture, inhuman or degrading treatment or punishment. The ECHR, examined further later in this chapter, is an international obligation of the United Kingdom and has been incorporated into United Kingdom law from October 2000. As interpreted in Chahal v United Kingdom, a landmark decision of the European Court of Human Rights in the context of a national security deportation, Art. 3 ECHR precludes removing a person to a country where there are substantial grounds for believing that if returned there he or she would face a real risk of such maltreatment even where the person was a threat to national security. The Prime Minister noted that this had precluded the deportation of suspects in a number of cases. He made clear that this preclusion had to change.

Taking these important comments in the light of subsequent clarifications and other statements by key security actors, one can tease out several levels of meaning on this theme ‘the rules of the game are changing’. This tests how far any can be said to be true of the range of measures deployed after 9/11 and 7/7 examined in Part III this book, when set against the broader historical context presented in Part II and the standards set by the ECHR and its incorporation in the HRA.

Clearly the Government will do all it can to deport foreign national/non-British citizen terrorist suspects, either consistently with Chahal or by changing the law to permit balancing the risk to the individual of maltreatment against the risk he or she poses to the national security of the United Kingdom. This is examined in more depth in Part III. But one can note here that it might be done in national law by amending the HRA to restrict the approach United Kingdom courts can take on the matter. Attempting to secure its change at ECHR level is more difficult, but could be done by persuading the Court of Human Rights in another case to revise its interpretation of Art. 3 ECHR or securing a textual change to the terms of Art. 3 itself through the conclusion by States Party of an amending Protocol. Neither outcome is likely at ECHR level. But in any event the processes envisaged are themselves puzzling in a number of ways. First of all, in that success at either or both levels might seem futile given the self-same prohibition in other international agreements such as UNCAT or the ICCPR. Neither embodies with respect to the United Kingdom a right of individual petition and may thus, polit...

Table of contents

• Cover Page
• Half-Title Page
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• Foreword
• Preface
• Acknowledgments
• List of Abbreviations
• Part I Introduction and Overview
• Part II Before 9/11: United Kingdom and Empire 1905–2001
• Part III After 9/11: Have the Rules of the Game Changed?
• Part IV Conclusion
• Bibliography
• Index