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11 September 2016

Fifteen years on from 9/11, how the UK bypassed justice to become a counter-terrorism state

The sinister story of legislation in Britain following the New York terrorist attacks.

By Maria Norris

Fifteen years since 9/11. 11 years since 7/7. 16 years of counter-terrorism legislation in the United Kingdom.

Before the Terrorism Act 2000, terrorism legislation was made up of a series of temporary, but renewable measures. Even in the height of The Troubles, terrorism legislation was regarded as temporary emergency measures.

Now, the UK has several pieces of terrorism legislation such as the Terrorism Act 2000, the Anti-Terrorism Crime and Security Act 2001, the Prevention of Terrorism Act 2005, the Terrorism Act 2006, the Counter-Terrorism Act 2008 and the Counter-Terrorism and Security Act 2015. This does not include several secondary laws such as the Immigration Act 2014 and the Criminal Justice Act 2003 – all of which have provisions dealing with terrorism.

And the government is not done with terrorism legislation, with the Extremism Bill due to be published as soon as the government can decide what extremism is.

The United Kingdom is now a counter-terrorism state, where the duty to prevent terrorism encompasses almost every facet of our lives, from nurseries, to schools, hospitals, and the posters on bus stops telling us all to be vigilant.

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Significantly, living in a counter-terrorism state profoundly alters the relationship between the state and the citizen. The rule of law is a key tenet of the relationship between a state and those within its jurisdiction. And the rule of law, touted as a key British value, depends on the presumption of innocence. No one should be punished except for when they have been convicted of a distinct breach of the law.

But counter-terrorism legislation relies on a bevy of administrative and executive measures that effectively sidestep the rule of law, deploying punitive measures before the criminal justice system becomes involved. This has been the case from the very beginning. As a result of the Anti-Terrorism, Crime and Security Act 2001, foreign terrorist suspects – who were never charged or tried of any crime – were sentenced to indefinite detention in Belmarsh Prison.

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The Prevention of Terrorism Act 2005, responding to the House of Lords ruling that indefinite detention breached the human rights of the detainees, created the control order regime, now known as Tpims (Terrorism Prevention and Investigation Measures). Tpims are punitive measures applied to individuals before they actually commit a crime. If a person is suspected of involvement with terrorism, they can be subjected to curfews, have their internet and phone use curtailed and even be forcibly moved to another city, away from their family and friends. The presumption of innocence is bypassed. 

Executive measures such as these abound in terrorism legislation. The Counter-Terrorism, Crime and Security Act 2015, for example, created Temporary Exclusion Orders, by which the Home Secretary can prevent those suspected of terrorism from returning to the UK and can be imposed on anyone with right of abode in the UK, including British citizens. This essentially invalidates British passports creating a type of enforced exile.

Similarly, the deprivation of citizenship power enhanced by the Immigration Act 2014 enables the Home Secretary to deprive someone of their British citizenship if this is deemed to be in the public good. Again, no criminal conviction is necessary and the courts have minimal involvement. Deprivation orders are usually issued when British citizens are abroad, minimising the chances of legal recourse. All of this happening before an individual has been charged, let alone tried and convicted of a crime.

By virtue of their executive nature, these and other terrorism powers take place virtually outside the criminal justice system, severely testing the limits of the rule of law. As the academics Jude McCulloch and Sharon Pickering argue, due process protections that underpin the presumption of innocence – such as the right to a fair trial – have been severely undermined within the counter-terrorism framework. This represents the breaking of a central tenet of the relationship between a state and its citizens, where the citizenry is viewed solely through the lens of security.

The saying goes that if you have done nothing wrong, you have nothing to fear. We assume the government knows what it’s doing when it deploys executive measures. But it remains that, technically, terrorist suspects are suspects. As long as they have not been charged or tried for a crime, they remain suspects. As such, the presumption of innocence should still apply. It seems like a small technicality. But technicalities matter. Law and justice are built on technicalities.

It is then no surprise that the UK government has such distaste for the current human rights framework, a collection of technicalities protecting human dignity. It is absolutely no coincidence that the more terrorism law there is – and the more power the state has to operate beyond the criminal justice system – the more distasteful human rights become.

The human rights framework was develop to protect the people from the state. Over and over, from the Belmarsh case, to rulings regarding control orders and deportations, the human rights framework has been an irritant to a state that relies on executive measures.

This is how we’ve ended up living in a society where the government can argue that human rights – rights that protect universal human dignity – are against national security; where the Attorney General is able to say with a straight face that repealing the Human Rights Act will actually protect human rights. What once used to be the line of tyrants and dictators is now accepted government policy.

All of this fundamentally alters the relationship between the state and the citizen. It also affects the relationship between citizens, where teachers, doctors, neighbours, colleagues, are all asked to be vigilant, to watch one another for signs of danger. Especially in an atmosphere where the authorities publicise thwarting a “significant” suspected Islamic State plot to attack the UK.

Sixteen years since the first general terrorism act, 15 years since 9/11, 11 years since 7/7, this is what it is like to live in a State that Counters Terror: a society where the state does not trust its citizens and its citizens don’t trust the state, or each other.

With more terrorism legislation on the way and plans to revoke the Human Rights Act, what kind of society will we become in the next 15 years?

That is the question that should be at the forefront of all our minds.

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