Perspectives, Themes and Concepts

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, politically, be seen as more remote and less threatening to preferred policy options. Secondly, the criticism it implies of the judiciary and the HRA may also strike an observer as strange given that the empowerment of the judges through that landmark constitutional reform was something effected by this very same Government. It raises in stark form, the matter of the proper role of the judiciary in the face of executive powers enabling serious interference with fundamental rights of individuals, a theme which runs through this book.

The statement (‘the circumstances of our national security have self-evidently changed’) also suggests that the nature of the threat is different and is greater than in the past. Both propositions are tenable but equally debatable. The theme has been taken up both by the Home Secretary and the Metropolitan Police Commissioner. In a speech to Demos on 9 August 2006, Home Secretary Reid stated: ‘We are probably in the most sustained period of severe threat since the end of the Second World War’.5 A report for the Joseph Rowntree Reform Trust quotes the Home Secretary as later likening the current ‘war on terror’ to that war against Nazi Germany and as claiming the threat now to be worse than the Cold War. Sir Ian Blair, the Metropolitan Police Commissioner, told BBC Radio Four listeners just before Christmas 2006 that the level of threat was both unparalleled and growing, and, as regards civilians, one would have to go back to the Second World War or the Cold War to find a comparable level. It was more dangerous than that posed by the Irish Republican Army (IRA) because that organization:

with very few exceptions, did not want to carry out mass atrocities, they didn’t want to die, they gave warnings and they were heavily penetrated by the intelligence services. None of those apply with al Qaida and its affiliates.6

In November 2006, Dame Eliza Manningham-Buller, Director General of the Security Service, revealed that the security services were aware of 30 serious plots by Islamic extremists, and as many as 200 British-based ‘networks’ involved with terrorism. The security services also knew of 1,600 people who were actively engaged in, or facilitating, terrorist plots, either in Britain or abroad.7 This is of grave concern, but does raise the question: if that is the level of threat, why are there in contrast so few charges and convictions and why, despite the width of the powers and the low level of proof required, are so few caught up in executive measures of detention, deportation and control orders?

Several commentators have expressed concern about governmental use of the politics of fear as a lever to obtain new powers or extend the range of existing ones.8 Lack of an historical perspective or the deployment of a distorted one is damaging. Claims that the threat is unparalleled, greater than that of the IRA or even the Cold War, do nothing to allay public fear. They prevent the realization that it can successfully be contained using the same methods as have in the past contained IRA and other terrorism. Moreover, arguably such hyperbole is redolent of the Iraq and weapons of mass destruction debacle itself so corrosive of trust in government. These concerns are shared by this author who has elsewhere deprecated the portrayal by governments of both political persuasions of opponents of certain enhancements of counter-terrorist powers as somehow ‘soft on terrorism’ when, in reality, the difference is one of considering the best means to contain terrorism.9 The characterization of this as a ‘war on terrorism’ can equally be deplored as lending a false status to terrorists. It fosters a climate of fear that may actually assist them.10 It can be contrasted with approaches to terrorism, examined in Part II, connected with the Irish and Northern Ireland questions and with the withdrawal from colonial empire, where government was all too keen to avoid characterizing them as war for fear of according insurgents the status of prisoners of war under international conventions or (as regards Malaya) because of concerns with respect to the insurance market. It has rightly been suggested that this rhetoric of war is ‘misleading and disproportionate’ and ‘has encouraged an overreaction in which human rights and the rule of law are among the more obvious casualties’; it is language encouraging an increase in executive powers.11 It is therefore to be welcomed that United Kingdom officialdom now refrains from using the phrase. It remains the lingua franca of policy statements by the United States.

Despite these concerns, one thing needs to be made clear at the outset of this book. It is not suggested here that every statement of Government on the threat and the means to combat it is highly suspect. Its current counter-terrorism strategy (examined in depth in chapter 6) has been described even by those expressing these concerns as ‘balanced and sensible’ but one ‘prejudiced and masked by the deluge of anti-terrorism legislation, ministerial rhetoric and some high-profile police activity.’ That there is a significant threat, likely to be long-term, to persons and property in the United Kingdom is clear and not disputed in this book. On current ECHR jurisprudence it is accepted here that it amounts to a ‘public emergency threatening the life of the nation’ enabling derogation from some ECHR rights. That characterization of the position prior to 7/7 has been contested by one eminent Law Lord (and the terms and tone of his speech suggest that his view might not change despite 7/7) and several others expressed some scepticism.12

The view that the threat is the greatest since the Second World War is clearly contestable. It will rightly raise eyebrows among those who lived through or were victims of the IRA’s bombing campaign in Northern Ireland and on mainland Great Britain from 1969 to 1999. Many will remember the carnage caused by bombs in Bishopsgate and Docklands in London; those in Brighton (targeting the Conservative Prime Minister, Mrs Thatcher and her governmental team); those that devastated the Manchester shopping centre; and the Birmingham pub bombings in 1974, that decade’s equivalent of 7/7.13 In the early 1990s the whole public transport system appeared thrown into chaos by bombs and hoaxes. The Irish National Liberation Army, a violent Republican terror group, even managed in 1979 to assassinate the Conservative Northern Ireland spokesman, Airey Neave, with a car bomb in the Palace of Westminster. The threat from Al Quaeda is not qualitatively different.14 Those who lived through the nuclear threat during the Cold War may also question the Home Secretary’s statements. There are certainly some differences in the mode of delivery of death and destruction. The phenomenon of the suicide bomber poses problems in terms of lack of prior warning and in that those willing to sacrifice their lives will not be deterred by harsh laws or penalties.15 But the phenomenon is historically by no means unprecedented or confined to Islamist or other religious terrorism.16 The prospect of death on the scaffold (particularly gruesome for those guilty of treason)17 or before a firing squad did not deter previous generations of those willing to use death and destruction to further their political cause. There are also parallels with those who undertake hunger strike to death for that end or those operatives who if captured choose to use their cyanide pill or to shoot or blow themselves up to avoid capture.18 Richardson argues that there is nothing ‘fundamentally different about suicide terrorism’ and that willingness to face certain death for a cause ‘is entirely consistent with the behaviour of soldiers throughout the ages’,19 the obvious example being Japanese kamikaze airmen in World War II. Similarities can also be seen between modern manifestations of terrorism and the impact and response at the time of attacks on the London Underground and prominent public buildings and bridges by violent Irish nationalists during the ‘dynamite war’ in the 1880s.20 The fear then as now was of use of new weapons that advances in technology can afford (then dynamite and gelignite and the development of crude time fuses enabling readier escape by the bomber; Semtex during the 1980s; a ‘dirty bomb’ in the immediate future). The response was the enactment of the Explosives Substances Act 1883. There is also a parallel with respect to the unsuccessful attempts by the Fenians (a Irish nationalist group using political violence) in 1867 to free comrades in prison (the Clerkenwell explosion) using an excessive quantity of gunpowder in a beer cask placed against the outer wall of the prison.21 There were six fatalities from a blast heard more than 40 miles away. Over a hundred were injured. More than 400 houses were damaged; many were destroyed. Thousands poured from the houses onto the streets in fear as fire spread through overcrowded slums. The response was to cancel all police and army leave and to enrol 166,000 special constables to help with the emergency.22

It has, of course, proved very difficult, without sufficient officers from the relevant communities, to penetrate Islamist terrorist groups. Perhaps it did prove easier to penetrate Irish Republican groups in the past. In addition, there are also problems about resolving the threat through negotiations, as was a feature of withdrawal from empire and the Irish questions. But attempts at conflict resolution in the Middle East and governmental approach to the Arab and Muslim world surely have a role to play in reducing the radicalization which brings recruits to terrorism in a similar way to the ‘hearts and minds’ and ‘constitutional’ dimensions of the earlier threats with which this book deals. In short, while not in any way asserting that every statement by governmental and security spokespersons is questionable and suspect, the suggestion made here is that it is not possible properly to appraise statements on and the efficacy or propriety of current strategies to manage the current threat from Islamist terrorism without setting both in the historical context afforded in Part II of this book and the human rights context examined there and as an important aspect of appraising current measures in Part III.23

Before embarking on a detailed examination of use of executive powers in those diverse and challenging contexts, it may be helpful to set the scene (particularly for non-legal readers) in a number of ways. First of all, clarity of analysis demands identification of the nature of the United Kingdom’s constitutional and legal orders as well as definition of some central concepts: national security; terrorism; and ‘executive measures’. Secondly, consideration needs to be given, in the context of the United Kingdom’s ‘unwritten’ constitutional arrangements, to the sources of legal power for the executive measures examined in this book. This stresses their concentration of power within the executive branch of government. It briefly considers modalities deployed to try to limit the risk of restraining action or interference by of other branches of government or agencies of accountability. The key word there is ‘limit’. So it notes provision of administrative means of challenge for those affected by the powers. Accountability to and scrutiny by other branches of government or other agencies of accountability has, moreover, never been wholly excluded. Accordingly, the chapter then goes on to examine the matter of the means used by, and the proper roles of, the national and international judiciary in securing legal accountability for actions taken and, in the post-1945 period, respect for human rights. It considers the broader question of political accountability. This chapter then ponders a key question: why respond to threats to national security through executive measures rather than through the sanctioning role of the criminal process? Finally, it touches on the need to deal with the underlying causes of a national security or terrorist threat, sometimes expressed as the need to win ‘hearts and minds’ or the political and constitutional dimensions of the problem.

The United Kingdom and its Legal and Constitutional Orders

The United Kingdom consists of mainland Great Britain (England, Wales and Scotland) and of Northern Ireland (the six counties of the north-eastern corner of the island of Ireland). Until 1922, the whole island of Ireland formed part of the United Kingdom, but the remaining 26 counties now form the Republic of Ireland. Like New Zealand and to some extent Israel, unlike most States in the world, the United Kingdom’s legal and constitutional orders are characterized by lack of an overriding, ‘written’, higher law constitution forming the supreme law of the country with which all other laws must conform. In contrast, the United Kingdom constitution is ‘unwritten’ and non-codified. The rules on the central matters with which constitutions are concerned are found in a variety of sources: statute (Act of Parliament), subordinate legislation, common law, conventions (binding but non-legal rules of constitutional behaviour), law and custom of Parliament, and the opinions of constitutional writers. In this legal and constitutional order, it is traditionally held, since the Glorious Revolution of 1688, that Parliament is sovereign. Legally speaking, it can make or unmake any law whatsoever (statute is supreme in the hierarchy of legal norms). No court has power to invalidate an Act of Parliament. That clear picture has become more clouded given United Kingdom membership of the European Union (EU) (formerly European Communities (EC)). But, EC law aside, its legal and constitutional order lacks an overriding Bill of Rights limiting the power of a parliament dominated by the executive: this is in a context in which only relatively recently have its courts unequivocally accepted the supremacy of EC law over statute and all other national laws (so long as the European Communities Act 1972 remains in force and the United Kingdom remains a member of the EU).24 The Bill of Rights 1688 was essentially concerned with the relationship between Crown and Parliament, subordinating monarchical to Parliamentary power. As regards colonies, in many the Governor, sometimes assisted by an Executive Council, was the sole law-maker, his powers limited by the need to have approval for laws from the Government in London. In others, laws were made by a Legislative Council, but the Governor, on advice from London, could withhold assent. For Governors, getting London’s approval for the proclamation of a State of Emergency gave them more freedom in that there was then no legal requirement to have London’s approval for the emergency laws made pursuant to it. Constitutional practice, however, required consultation on key matters. As with government in the United Kingdom, governmental authorities in its colonies were not limited by any Bill of Rights.

In such a system (whether in the United Kingdom or, with due adaptation for legal terminology as regards legislation, a colony), human rights values found legal expression in common law presumptions and principles of legislative intent (what Keir and Lawson called an ‘implied Bill of Rights’)25 when undertaking one of the courts’ central tasks, that of the interpretation and application of Acts of Parliament (statutes) to disputes brought before them. From 1953, they also found legal expression in a multilateral international treaty created by the Council of Europe. This treaty, the ECHR, is central to the matters considered in this book. The ECHR obliges a State party to it to accord to everyone within its jurisdiction the protection of the rights and freedoms set out it. The rights and freedoms protected are essentially ‘first generation’ civil, political and legal rights: the right to life; freedom from torture, inhuman and degrading treatment and punishment; freedom from slavery and servitude; the right to liberty and security of person (freedom from arbitrary arrest and detention); the right to a fair trial; freedom from retroactive criminal law or punishment; the right to respect for private and family life, home and correspondence; freedom of thought, conscience and religion; freedom of expression; freedom of association and assembly; the right to marry and found a family; the right to an effective remedy for violation of any of these rights and freedoms; and freedom from discrimination with respect to their enjoyment. Later Protocols (additions to the obligations under the ECHR) protect the right to property and peaceful enjoyment of one’s possessions, outlaw capital punishment, and protect freedom of movement. This last – Protocol Four – has never been ratified by the United Kingdom.

Some of the ECHR rights and freedoms are absolute (freedom from torture, inhuman or degrading treatment or punishment).26 Most permit specific exceptions. Thus the right to life in Art. 2 expressly endorses the death penalty or the use, where absolutely necessary, of lethal force to suppress a rebellion. The right to liberty and security of person is not infringed by imprisonment after conviction or by arrest on reasonable suspicion of having committed an offence with a view to bringing the person within the criminal process of charge and trial.27 Rights to respect for home and private life,28 to freedom of thought, conscience and religion, to freedom of expression and to association and assembly are all qualified rights. They can each be limited by law so far as is necessary in a democratic society to protect a range of community interests (public order, the rights and freedoms of others and, in some cases, national security or territorial integrity).29 Moreover, Art 15 ECHR enables derogation from most of the obligations in the ECHR to the extent strictly required by the exigencies of war or other public emergency threatening the life of the nation, so long as the measures are consistent with other international obligations of the State derogating. No derogation, however, is permitted from Art. 3 (freedom from torture, inhuman or degrading treatment or punishment), Art. 7 (freedom from retroactive criminal law or punishment) or, save in respect of deaths resulting from lawful acts of war, the right to life.30 The prime context of operation of Art. 15 has been in respect of internment (detention) without trial.

In 1976, the United Kingdom ratified a similar set of obligations in the United Nations’ (UN) International Covenant on Civil and Political Rights (ICCPR). It has also ratified the UN Convention Against Torture (UNCAT). But these obligations, while relevant to examination of the use of executive measures considered in this book, in one sense lack the practical immediacy of those under the ECHR. ECHR obligations are more immediate because of the sophisticated enforcement machinery provided by it and accepted by the United Kingdom. Those under the ICCPR and UNCAT are with respect to the United Kingdom as yet of a reporting nature only. Under the ECHR, in contrast, until 1997 another State party to it or an individual affected by action by a State party could complain to the European Commission of Human Rights about a violation of the ECHR by a State party. The Commission had a filter role on the admissibility of the application. As regards those found admissible, it had a dual role: investigating the complaint; and seeking a friendly settlement of the matter on a basis consonant with the protection of the human rights in the ECHR. If no settlement was possible, it had to draw up a report giving its opinion on the merits of the case (was there a breach of the ECHR or not?). That report was transmitted to a political body, the Committee of Ministers of the Council of Europe. The matter might go for decision, if the States concerned accepted its jurisdiction, to a judicial body, the European Court of Human Rights, whose judgments States Party had agreed to abide by and whose execution would be supervised by the Committee of Ministers. Otherwise, the matter would be decided by that Committee, whose decisions were again binding on States party to the ECHR. The main sanction was one of publicity, but a recalcitrant State could be expelled from the Council of Europe. Surprisingly, despite the existence there of a number of emergencies, the United Kingdom extended the protection of the ECHR to its colonies, without any real consideration of whether the law there, or indeed in the United Kingdom itself, conformed to it. As will be seen in chapters 3, 4 and 5, this was to bring problems with respect to the use of executive measures. But the practical impact of the ECHR on the United Kingdom and its colonies was somewhat blunted since not until 1966 did the United Kingdom recognize the right of individual complaint to the Commission. Nor did it before then recognize the jurisdiction of the European Court of Human Rights. Since 1997, however, the Commission has gone. All States must accept individual petition and the jurisdiction of the Court as sole decision-maker on ECHR compliance. The Committee of Ministers has no decision-making function on that matter. Its role is merely to supervise the execution of the judgments of the Court.

Until 2000, however, the ECHR only had a limited role in terms of being used in legal challenges to executive action within a United Kingdom court. Essentially, its role was as a tool for interpreting ambiguous statutory provisions. If such a provision was capable of several meanings, a court should accord it the meaning consonant with the ECHR. If no such meaning could be found, the statute prevailed even though violative of ECHR obligations; an Act of Parliament reigned supreme as far as the courts were concerned.31 On 2 October 2000, however, the Human Rights Act 1998 (HRA) entered into force, incorporating most of the ECHR rights and freedoms as directly enforceable parts of United Kingdom law. This subtly drafted measure aims to ‘bring rights home’, to allow United Kingdom courts to do what until then could only be done by the European Court of Human Rights.32 The HRA provides a greater degree of protection of human rights within the United Kingdom’s legal and constitutional order while preserving in full the key legal constitutional principle of the sovereignty of Parliament. United Kingdom courts have enhanced powers of interpretation of statutes to achieve compatibility with the ECHR. But, even where a provision in an Act of Parliament is found by the court to be incompatible with ECHR rights, the court cannot invalidate or (in United States’ terms) ‘strike down’ the Act of Parliament. The powers the HRA afford the courts are outlined in more detail in this chapter in the section on legal accountability. Their application to post 9/11 executive measures is analysed in Part III.

Key Concepts

National Security

The concept of ‘national security’ is somewhat amorphous. Whatever the terms of a particular definition proffered, the things included are likely in themselves to prove elusive (for example, ‘defence of the realm’, ‘terrorism’) and to leave much to the judgment of the decision-maker in the executive or in the court applying them to particular contexts or activities. But the popular conception of a national security threat (the invader; the threat of aerial bombardment or nuclear attack; the spy; the saboteur; the terrorist) is not far off the mark.

There is in the United Kingdom no single statutory or case law definition. Stone suggested that the concept embraced the defence of the realm, the prosecution of war, the armament and disposition of the armed forces, nuclear weapons, and the activities of the security and intelligence services, presumably including those of the ‘listening centre’ at GCHQ.33 Leigh and Lustgarten sought in their seminal work to provide a ‘democratic conception of national security’. Recognizing the potential for abuse (and their identification of past abuses), they sought as a basis for justifying the taking of extraordinary measures to ascertain an ‘irreducible minimum’, a central ‘core of validity’. They considered that:

Certain activities – notably political violence and covert attempts to influence a nation’s political processes – are incompatible with both the institutions and ideals of a democratic state and cannot be tolerated. All states are entitled to protect their territory from invasions or attempts to detach portions of it by insurrection. In addition efforts to gain access to certain narrow and specific categories of information ought to be prevented to protect any nation’s immediate or longer-term defence needs. Therefore these matters deserve to be regarded as ones whose ‘security’, in the sense of safeguarding, requires protection. Beyond them all further encroachment of the claims of national security must be regarded as highly suspect in a strong democratic state.34

The definition thus covers ‘terrorism’. There is a danger that a security and intelligence agency created to protect ‘national security’ is capable, because of the extraordinary powers it possesses, of destroying the freedoms enjoyed by the inhabitants of a democratic polity or even its democracy itself. The agency might become an independent power centre not controlled by its constitutionally accountable political masters. It might pursue legitimate ends by unlawful or undesirable means. On its own volition or that of those in government, it might deploy the powers to target organizations such as the Campaign For Nuclear Disarmament (CND) or opposition parties espousing similar views for no greater reason than that their activities aroused opposition to government policies asserted by government to be the sole means of protecting national security, or to target trades unions and trades union leaders engaged in certain ‘political’ industrial disputes.35 In part this might come about because of an inclusion of ‘subversion’ within an agency’s remit; ‘without that mandate and the use made of it by security services, it is very unlikely that their work and their position within government would even have entered public consciousness’.36 But there is a danger in equating ‘national security’ with the terms of a security agency’s remit in that, since the end of the Cold War, the agency concerned or its political masters need a new task, so that the skills of its personnel can be directed to deal, for example, with crime, albeit serious organized crime. The fact that dealing with terrorism requires cooperation on a global scale between states and with international organizations has in recent years seen a broadening of the term in that a threat to one nation’s security can be regarded as one threatening that of the United Kingdom. Thus in Rehman,37 the House of Lords were concerned with a decision to deport on national security grounds a foreign national resident in the United Kingdom because he was thought to be concerned in fund-raising and recruiting for organizations involved in terrorism in Kashmir. Their Lordships in rejecting Rehman’s appeal took a wide view of what risk to ‘national security’ entails. The risk need not be the result of a direct threat to the United Kingdom. It is not limited to action by an individual targeted at the United Kingdom, its system of government or its people. It embraces activities directed against the overthrow or destabilization of a foreign government if that foreign government is likely to take reprisals against the United Kingdom that affect the security of the United Kingdom or of its nationals. Given the current state of world affairs, action against a foreign state can indirectly affect the security of the United Kingdom. The means open to terrorists both in attacking another state and attacking international or global activity by the community of nations are capable of reflecting on the safety and well-being of the United Kingdom or its citizens. Factors to be taken into account in deciding whether there is a real possibility that the national security of the United Kingdom may immediately or subsequently, whether directly or indirectly, be put at risk by the actions of others include the sophistication of terrorist weaponry, the rapidity of movement of persons and goods, and the speed of modern communications. The interests of the state needing protection include its military defence, its democracy, and its legal and constitutional systems. The reciprocal co–operation between the United Kingdom and other states in combating international terrorism can promote its national security; such cooperation may itself foster such security ‘by, inter alia, the United Kingdom taking action against supporters within the United Kingdom of terrorism directed against other states’.38

Terrorism: Violence as Political Communication39

‘Terrorism’ is a concept for which there are almost as many definitions as commentators.40 Definition is not rendered easier by the highly politicized context in which this pejorative term (one tends to apply it to one’s enemies or opponents) is discussed.41 Discussion is tainted by the conception that one man’s terrorist is another’s freedom fighter. This adage, however, confuses ends and means; the end may or may not be a justifiable one, but the concept of terrorism focuses on the means to attain the end rather than the end itself.42

Acts of terrorism are readily also characterizable in national and international legal orders as criminal. Terrorism consists of (or terrorists commit) violent acts against persons and/or property constituting homicide (murder or manslaughter), serious offences against the person, criminal damage, firearms offences or ones of causing explosions. Unlike the criminal law, where motive is immaterial to liability, to constitute ‘terrorism’ the motive behind the act becomes crucial. The core of the concept is the deployment of violence for political ends (understanding that term widely) with the aim of sending a message to persons who may or may not be directly injured by the act of violence in question. Thus, for the RAND research project on the subject, it was important to focus on the quality of the act rather than the identity of its perpetrator or the nature of the cause in respect of which the act was committed. Hence, ‘terrorism’ was ‘a crime in the classic sense …, albeit for political motives’. It was distinguishable from the actions of soldiers in armed conflict or war in terms of its ‘deliberate targeting of non-combatants or hostages’. ‘Terrorism’ also contained a psychological component, being

… aimed at the people watching. The identities of the actual targets or victims of the attack were often secondary or irrelevant to the terrorists’ objective of spreading fear and alarm and gaining concessions. The separation between the actual victim of the violence and the target of the intended psychological effect was the hallmark of terrorism. It was by no means a perfect definition and it certainly did not end any debates, but it offered some useful distinctions between terrorism and ordinary crime, other forms of armed conflict, or the acts of psychotic individuals.43

Wardlaw, a criminologist, proffers the following ‘politically neutral’ definition, in part as an insightful amalgam of the best elements of others:

The use, or threat of use, of violence by an individual or group, whether acting for or in opposition to established authority, when such action is designed to create extreme anxiety and/or fear-inducing effects in a target group larger than the immediate victims with the purpose of coercing that group into acceding to the political demands of the perpetrators.44

This catches as terrorism acts or threats of violence by individuals, groups or States. It covers pro-State and anti-State terror. It would rank as terrorism acts perpetrated or threatened against political leaders and members of the security forces whether police or military, whereas others would seen such acts against such persons as acts against ‘combatants’ and therefore better analysed, not as ‘terrorism’, but as political assassination or acts of warfare. An Israeli philosopher, Primoratz captures this well. For him, ‘terrorism’ is

… the deliberate use of violence, or threat of its use, against innocent people, with the aim of intimidating them, or other people, into a course of action they otherwise would not take.45

He elaborates on two key points about this ‘politically neutral’ definition: