The National Security Constitution

Paul F Scott

• Publisher: Hart Publishing
• Year: 2018
• ISBN:
  9781509911028
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This book addresses the various ways in which modern approaches to the protection of national security have impacted upon the constitutional order of the United Kingdom. It outlines and assesses the constitutional significance of the three primary elements of the United Kingdom's response to the possibility of terrorism and other phenomena that threaten the security of the state: the body of counter-terrorism legislation that has grown up in the last decade and a half; the evolving law of investigatory powers; and, to the extent relevant to the domestic constitution, the law and practice governing international military action and co-operation. Following on from this, the author demonstrates that considerations of national security – as a good to be protected and promoted in contemporary Britain – are reflected not merely in the existence of discrete bodies of law by which it is protected at home and abroad, but simultaneously and increasingly leaked into other areas of public law. Elements of the constitution which are not directly and inherently linked to national security nevertheless become (by both accident and design) implicated in the state's national security endeavours, with significant and at times far-reaching consequences for the constitutional order generally. A renewed and strengthened concern for national security since September 2001 has, it is argued, dragged into its orbit a variety of constitutional phenomena and altered them in its image, giving rise to what we might call a national security constitution.

1

The Counter-Terrorism Constitution

I.Introduction

At the heart of the national security constitution in its modern form stand those powers which address, directly and explicitly, the threat of terrorism. Here, not only is there a significant body of law to consider, but that body of law is rapidly and constantly evolving: the law of counter-terrorism in the middle of the century’s second decade was very different from that which was put in place by the Terrorism Act 2000. This first chapter considers the evolution of that law, providing an overview of the background to the legal position, followed by a discussion of the key developments since the attacks of 11 September 2001, showing how the approach to counter-terrorism has shifted in response to changing patterns of national security threats (or at least changing perception as to the nature of those threats) and considering certain specifically constitutional themes which recur within the modern law of counter-terrorism. The most important point which emerges from this chapter, however, is one which cannot be made directly within it, but must be made elsewhere in this book: that the law of counter-terrorism upon which this chapter focuses, though it is the most direct constitutional response to modern threats to national security at home, constitutes only a small fraction of the national security constitution.

Though in beginning from a consideration of the law of counter-terrorism we are addressing that element of our broader subject which enjoys the highest public (and academic) profile, to focus only upon the law of counter-terrorism would be to miss the number of other ways in which the constitution promotes and otherwise reflects the ends of national security. One point to make is that in considering the counter-terrorism constitution, we are always in the domain of exceptionalism. Even where the law is stable over time, even where the powers are widely used, the law of counter-terrorism necessarily presents itself as something exceptional, a body of law which implements powers or limits rights in ways which would not otherwise be accepted because it responds to a phenomenon which exists outside the mainstream of those activities which the law is required to address. Were it otherwise—were terrorism understood by lawmakers to be a phenomenon capable of accommodation within the normal criminal and civil law—there would be no counter-terrorism law. In what follows, that claim to exceptionalism acts as the background to certain critical observations made about the law in this area, but it should not thereby be assumed that it is in any way endorsed. There is good reason to believe not only that terrorism is not an exceptional phenomenon requiring an exceptional legal response, but—further—that there does not exist a group of activities which can be usefully categorised, at least as a matter of law, as a single phenomenon of ‘terrorism’.¹

II.CONTEST and the Joint Terrorism Analysis Centre

The government’s approach to terrorism is underpinned by ‘CONTEST: The United Kingdom’s Strategy for Countering Terrorism’, published for the first time in 2006 and reissued, following occasional revision, in 2011. The strategy, the aim of which is ‘to reduce the risk to the UK and its interests overseas from terrorism, so that people can go about their lives freely and with confidence’, is organised around four ‘workstreams’: Pursue (‘to stop terrorist attacks’); Prevent (‘to stop people becoming terrorists or supporting terrorism’); Protect (‘to strengthen our protection against a terrorist attack)’; and Prepare (‘to mitigate the impact of a terrorist attack’).² The second of the four has been the subject of the most sustained attention, as a result of the perceived anti-Muslim bent of many of the projects which take place within the workstream.³ Otherwise, what is most striking about CONTEST strategy is the level of generality at which the key commitments are formulated, and how little work they are therefore able to do in determining the specific steps taken in order to combat the threat of terrorism. That is, though the various legal issues and regimes described in the chapter can all easily be numbered under one or the other of these headings, the specific form that they take and the manner in (and time at) which they are reformed or amended, appears to be causally connected to CONTEST in only the loosest of ways.

The key institution of the counter-terrorism constitutional order is the Joint Terrorism Analysis Centre (JTAC), established in 2003, which is the body which ‘pulls together all the available intelligence on the Islamist threat, analyses it and produces short-term assessments of the level of threat and longer-term assessments of terrorist networks, capabilities and trends.’⁴ JTAC enjoys a certain level of prominence as the body which sets the ‘threat level’—the threat posed to the UK by international terrorism on one hand and Northern Irish terrorism on the other—changes in the former of which are widely reported and often result directly in changes to the experience of travellers and other sections of the public.⁵ JTAC, though it is ‘self-standing’ and comprises representatives of over a dozen separate bodies and agencies, is based within MI5’s headquarters. Its head is accountable to the Director General of MI5, and reports periodically to the JTAC Oversight Board. The creation of JTAC is widely seen to have been a positive development (Hennessy notes that it has ‘spawned a number of imitators across the developed world’)⁶ and it may well be true that the quality of analysis has improved as a result. It is nevertheless clear that very little of JTAC’s work leaves any obvious mark upon the legal record.

III.The Role of the Criminal Law in Counter-Terrorism

One of the key features of the legal response to terrorism is, of course, the criminal law. There exist, and have existed for many decades, a large (and growing) number of criminal offences which specifically relate to terrorism, as well as an unquantifiable number which might be committed by people recognised—in law or merely informally—as terrorists. Some of the terrorism offences are intuitively justified; others are far broader than can be justified and only selective enforcement prevents the law being brought into dispute—perhaps rendered farcical—by their existence.⁷ Some are prosecuted with relative frequency; others rarely or not at all.⁸ There is also a special power of arrest under section 41 of the Terrorism Act 2000, to which a longer permissible period of pre-charge detention than usual applies.⁹ Though this chapter makes reference to some of the relevant offences at certain points, they are not its focus. For one thing, the offences in question (mostly) raise issues which are not relevant to a consideration of national security from a constitutional perspective. There are, of course, exceptions—see, for instance, the consideration of public interest immunity and in camera trials in Chapter 5—but the primary issues to which the various relevant offences give rise are better addressed by criminal lawyers. That there remains a counter-terrorism constitution to consider in this chapter is the result of a variety of factors. A first is that the criminal law can respond only to acts which have already taken place (even if those acts are preparatory to some act which might take place in future). The legal response to terrorism seeks, alongside that possibility, to pre-empt terrorist acts; to put in place mechanisms which prevent them from taking place at all. Related to this is the criminal standard of proof: though—as we shall see—the legal threshold for the various mechanisms under discussion here varies, each is by definition lower than the ‘beyond reasonable doubt’ standard used in the criminal law, and some are much lower indeed.

This alone does not explain the discrepancy: after all, the criminal standard of proof applies generally, and there is no sense in which too few offences are successfully prosecuted in the contemporary United Kingdom. More important within the specific context of terrorism is the law governing the use made within the legal process of material acquired via the interception of communications (what is usually described as ‘intercept evidence’, and which by statute includes the content of intercepted communications but also ‘secondary data’ or ‘communications data’ associated with those communications).¹⁰ The relevant rules as found in the Regulation of Investigatory Powers Act 2000 (RIPA) provided that ‘no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings’ which disclosed intercept material in circumstances suggesting that it originated in one of a number of acts, or which tended to suggest that such acts had taken place.¹¹ For present purposes, the most important of those acts was ‘the issue of an interception warrant’ but also included within the categories of acts which were not to be disclosed in this way were unlawful interception by one of a number of identified agents of the state, the making of an application for a warrant, and ‘the imposition of any requirement on any person to provide assistance with giving effect to an interception warrant.’¹² The basic position therefore effectively prevented the use of intercept evidence though without directly forbidding it: if the material could be adduced in a manner which did not suggest that it originated in any of the relevant acts (or that such acts had otherwise taken place) then it could be used. This rule was subject to a number of exceptions, the most important of which permitted the material to be used before various specialist bodies (the Investigatory Powers Tribunal, the Special Immigration Appeals Commission etc),¹³ subject to limitations preventing the disclosure of the relevant material to the non-state party (or parties) and their ordinary counsel (rather than special advocates).¹⁴ Communications data could be adduced in legal proceedings where to do so did not suggest the issue of an interception warrant; as, for example, where it was acquired under the separate powers in RIPA governing the acquisition of such data. An equivalent scheme to that in RIPA is now contained in the Investigatory Powers Act 2016 (IPA).¹⁵

The effect of these regimes is to allow intercept material to be disclosed (and relied upon) in those specialist tribunals which are required (or empowered) by statute to employ ‘closed material procedures’, as long as doing so does not lead that material being disclosed to those (including the person on whom the measures etc are imposed) outside of the national security framework. As discussed in Chapter 5, however, such procedures are not available in the context of criminal law; their use therein would represent a clear (and inherent) breach of natural justice which, though it could as a matter of law be authorised by Parliament, would often be incompatible with the European Convention on Human Rights. Intercept evidence can therefore be used to demonstrate the necessity of imposing some civil measure upon persons suspected of involvement in terrorism (and in rebutting any challenge to that imposition) but ...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• Introduction: The Constitution and National Security
• 1. The Counter-Terrorism Constitution
• 2. Investigatory Powers and the Constitution
• 3. The Military Constitution
• 4. Citizenship
• 5. Secrecy
• 6. Justiciability
• 7. Sovereignty
• Index
• Copyright Page