After 9/11: Overview and Context
This chapter seeks to place the various executive measures used since 9/11 in the context of the Government’s counter-terrorism strategy at the beginning of this twenty first century and the revisions to it after 9/11 and 7/7. It affords this contextual overview the better to enable the reader to appreciate and digest the detailed examination of those executive measures undertaken in subsequent chapters. Chapter 7 subjects to close scrutiny the nature and use of the executive measures deployed: indefinite detention without trial under the Anti-terrorism, Crime and Security Act 2001 (ATCSA); control orders under the Prevention of Terrorism Act 2005 (PTA 2005), restricting movement and liberty and security of person and a variety of privacy, communication, association and property rights; exclusion and deportation on national security grounds; and the range of changes in citizenship and immigration law designed to increase the numbers of individuals amenable to powers applicable only to foreign nationals through deprivation of British citizenship or the right of abode enjoyed by some Commonwealth citizens. It also delineates the very real concerns such controversial measures have generated. Chapter 8 considers the nature of the challenge mechanisms open to those subjected to these executive measures: appeals to the Special Immigration Appeals Commission (SIAC) as regards ATCSA detentions and immigration and citizenship matters; and the role of the High Court in respect of control orders. It also considers the role of applications for judicial review. It delineates the powers of SIAC and the High Court and the ways in which the schemes seek to reconcile competing interests of protection of security material and sources, on the one hand, and due process and individual rights to a fair hearing, on the other. The processes involve dealing with material in ‘open’ and’ closed’ sessions, with the latter excluding from participation the individual and their legal team. The SIAC or the High Court examines the material relied on by the Home Secretary aided in this task by a lawyer appointed as a Special Advocate to promote the interests of the individual without being subject to the latter’s instructions or a part of his/her legal team. Those processes are controversial and it is argued by some that they are not compatible with the ‘fair hearing’ requirements of the ECHR. Chapter 9, in turn, considers how that matter and other concerns about the powers, have translated into legal challenges and examines their outcome and what those challenges tell us about the changed role of the courts faced with security powers in the HRA era. Finally, chapter 10 looks back to some of the themes and issues outlined in chapter 1 and reflects on the proper role of the courts in a liberal democracy when considering the impact on fundamental rights and freedoms of executive measures thought by Executive and Legislature essential for the protection of the public and of national security.
Anti-terrorist Powers for the Twenty-first Century: the Terrorism Act 2000
The Terrorism Act 2000 (TA 2000) was enacted following the Government’s acceptance1 of most of the recommendations of an inquiry by Lord Lloyd of Berwick,2 established in 1995 by the previous Conservative Government to consider whether there would be any necessity for the United Kingdom to have specific counter-terrorism legislation in the United Kingdom in the event of a lasting peace in Northern Ireland.3 Lord Lloyd reported that there would remain a need for permanent counter-terrorism legislation.4
The Act, stated by the Government to be fully Convention compliant, sought to provide powers sufficient to deal with a number of terrorist threats to the United Kingdom. First of all, there remained the residual threat from terrorism connected with Northern Ireland affairs from groups not ‘on ceasefire’ as part of the ongoing Northern Ireland peace process. Secondly, its powers were designed to enable the authorities to deal with a range of other threats from domestic terrorist groups: Scottish and Welsh nationalists; extreme elements of the animal rights and environmentalist lobbies; and the danger that pro-Life, anti-abortion groups might follow the path to violence of their American counterparts. But the most potent threat it was created to deal with was the increasing one from international terrorism which had and would continue to have a significant impact. A growing part of international terrorism was that motivated by religious fanaticism.5 Neither Al Qaeda nor Osama Bin Laden find specific mention in the Report or in its supporting Evidence Volume.6 In hindsight that will seem surprising, but at the time that material was prepared they had only just begun to appear on the radar of United States’ investigative agencies, with Bin Laden perceived principally as a financier of terrorism, and the FBI just beginning to look over CIA intelligence material to see if there was an investigation worth pursuing. It only became aware of Al Qaeda late in 1996, after Bin Laden’s fatwa against the United States from a cave in Afghanistan.7
The Act introduced new definitions of ‘terrorism’ and ‘terrorist’, considered in chapter 1. Fortunately, given their vagueness and overbreadth, they do not represent as such criminal offences. Rather, they help determine the scope of subsequent powers in this Act and because of incorporation by reference in later anti-terrorist legislation (ATCSA; PTA 2005 and the Terrorism Act 2006 (TA 2006)), the scope of powers in those Acts. This definition accords with but was not created in response to that in the EU Council Framework Decision on Combating Terrorism.8 The central anti-terrorism approach in the Act is that of the modified criminal prosecution model: providing the police with extended powers of arrest and extended detention without charge of terrorist suspects (at the time of writing, permitting detention for up to 28 days with judicial approval);9 and adding to the scope of the criminal law a further battery of specific offences dealing with such matters as the financing of terror,10 the provision of terrorist training, and intelligence or information gathering for terrorist purposes.11 It did further extend, beyond terrorism connected with Northern Ireland affairs, the executive power to proscribe organizations involved in terrorism,12 but the principal rationale of that was to bring members and supporters within a range of serious criminal offences concerning the political, financial and material support dimensions of terrorism.13 It also afforded the authorities a range of preventative powers of stop and search14 and of travel control on journeys by air or sea15 to hamper terrorist movements, and a range of controls on parking, the better to guard against terrorist acts such as car bombs.16 It further honed investigative powers as regards financial and material support of terrorism and the ability to confiscate the assets of terrorism.17
In contrast, the role of the executive measures as a supplement or alternative to the criminal process on which this book focuses was deliberately reduced. Powers enabling the exclusion from all or part of the United Kingdom of terrorist suspects connected with Northern Ireland affairs, a centrepiece of successive Prevention of Terrorism (Temporary Provisions) Acts since 1974, were lapsed after 21 March 1998, while remaining on the statute book, rapidly re-invocable, should the need arise, by executive order subject to parliamentary approval.18 The powers were not brought into the Terrorism Bill. The Government believed
… that although the powers have been useful, their utility is limited. More importantly … the powers are fundamentally objectionable in so far as they may be used to exclude British citizens by executive order from part of the national territory.19
As part of the ongoing Northern Ireland peace process, the hated power of internment20 was deleted from the statute book rather than being kept as a reserve emergency power for rapid invocation should that process go badly wrong and violence return to previously high levels. In its Consultation Paper which preceded the enactment of the TA 2000,21 the Government noted:
The Northern Ireland (Emergency Provisions) Act 1998 removed the power for the Secretary of State for Northern Ireland to introduce detention without trial (internment). The Government took that step because it doubted whether internment could ever be effectively introduced. Since the Omagh bombing, there have been a number of calls to reinstate that power (as well as some to take a further step and introduce internment itself).
The Government recognises the reasons behind these calls. It does not rule out for all time the reintroduction of the power to intern, but the setting aside of the criminal law in favour of executive action could only be contemplated exceptionally, where the Government were convinced that the measure was likely to prove effective; and it would require the Government to enter a derogation under article 15 of the European Convention on Human Rights (ECHR). Joint action by the UK and Irish Governments might increase the likelihood of effectiveness, but the Government remains to be convinced of the practical merits of such a measure. At present, the Government has no plans to reintroduce the power of internment.
Of this book’s trio of executive measures, refusal of entry and deportation on national security grounds alone remained. That measure’s decision-making and judicial challenge processes had heavily been revised by the Special Immigration Appeals Commission Act 1997 in response to the adverse decision of the European Court of Human Rights in Chahal v United Kingdom.22 As has been seen in chapter 4, the first tests of that process in the courts in Secretary of State for the Home Department v Rehman23 saw the Court of Appeal and the House of Lords limit the impact of the process. Those courts reduced the powers of the Special Immigration Appeals Commission (SIAC) to those at the review rather than appellate end of the spectrum; propounded a very wide notion of national security threat; and affirmed the tradition of extreme judicial deference to executive knowledge in the national security field. Their Lordships’ opinions were written before but delivered after the terrorist attacks on the United States that have come to be known by the date of their occurrence (11 September 2001) as 9/11. Two Law Lords specifically referred to this. Lord Steyn considered Lord Woolf MR’s formulation of the Home Secretary’s difficult task of evaluating the risk an individual poses to national security. The Master of the Rolls had stated:
In any national security case the Secretary of State is entitled to make a decision to deport not only on the basis that the individual has in fact endangered national security but that he is a danger to national security. When the case is being put in this way, it is necessary not to look only at the individual allegations and ask whether they have been proved. It is also necessary to examine the case as a whole against an individual and then ask whether on a global approach that individual is a danger to national security, taking into account the executive’s policy with regard to national security. When this is done, the cumulative effect may establish that the individual is to be treated as a danger, although it cannot be proved to a high degree of probability that he has performed any individual act which would justify this conclusion. … It is the danger which he constitutes to national security which is to be balanced against his own personal interests.
Approving that, Lord Steyn thought that the dynamics of the role of the Secretary of State, charged with the power and duty to consider deportation on grounds of national security, irresistibly supported Lord Woolf MR’s analysis. While Lord Steyn had come to this conclusion by the end of the hearing of the appeal, the tragic events of 11 September 2001 in New York reinforced compellingly that no other approach was possible.24 Lord Hoffman commented that those events
are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.25
9/11 changed the Government’s counter-terrorism strategy.
The events of 9/11 have been analysed in copious detail elsewhere.26