Anti-terrorism powers for a rainy day - the effects of 9/11 on the law, ten years on

This weeked will mark the 10th anniversary of the 11 September 2001 terrorist attacks. Despite the intervening decade, the states threatened by terrorism are still puzzling out the right balance between the powers of security services and the rights of suspected terrorists to due process.

Although terrorism is now mercifully low on the public agenda, the effects of 9/11 are still being felt across the legal system. The UK is soon to open an independent inquiry into the improper treatment of detainees by security services following the terrorist attacks. As things stand, the UK’s major human rights groups are boycotting the inquiry for fear that the Government will be able to suppress evidence.

The intelligence services have now tightened up their policy towards interviewing detainees overseas, but one policy which is still in flux is the control order regime, soon to be succeeded by Terrorism Prevention and Investigation Measures (TPIMs).

 I have explained before why control orders have been so controversial – (see Control orders: what are they and why do they matter?). In short, they are give the secretary of state the power to impose strict conditions on a terrorist suspect as long as there are “reasonable grounds” for suspecting they are or have been involved with terrorism-related activity. The orders are controversial because they allow the suspects to be effectively under house arrest without anywhere near the ordinary level of suspicion necessary to detain a person.

The TPIM bill drew back from some of the more stringent powers of control orders, most notably the power of the secretary of state to forcibly relocate a suspect to anywhere in the country. This was in line with the coalition government’s early promise to "restore the rights of individuals in the face of encroaching state power".

The TPIM Bill recently received its third reading in Parliament, and there has been some activity since I last posted on the bill. The government is now proposing a second bill to be scrutinised by Parliament; the “Enhanced” TPIM bill. If passed, this would allow more stringent powers, notably relocation to anywhere without consent, a total ban on communication devices and a ban on all communications without the secretary of state’s consent.

So does this mean we are going back to control orders? No. Well at least, not yet. January’s Review of Counter Terrorism Powers, the Secretary of State concluded that there may be exceptional circumstances where it could be necessary for the government to seek Parliamentary approval for additional restrictive measures (see page 43, para 27). This seems sensible; clearly the needs of the security services will be different should a "very serious terrorist risk” arise. Of course, that does raise the question of what constitutes “exceptional circumstances”.

It was not originally intended that the emergency powers be scrutinised by Parliament now, but during an oral evidence session with Baroness Neville Jones (see questions q51-56), the then Security Minister, the Joint Committee on Human Rights pressed for publication of a draft Bill for pre-legislative scrutiny. Again, this is sensible as it ensures that in an emergency the powers which would be passed would already have been scrutinised.

So, the enhanced bill has now been published, effectively to be kept in the locker in case of a rainy day. Not all is rosy, however. Amongst other things, the human rights campaign group Liberty have criticised a newly proposed clause in the main TPIM bill which will allow the Secretary of State to impose the measures if an emergency occurs during a Parliamentary recess.

This is similar to a Henry VIII clause, in that it allows the secretary of state to impose powers which have not been passed by Parliament, although they may previously have been scrutinised. This is a bit worrying, as it is within the Secretary of State’s discretion to decide when it is, in the language of the bill, "necessary to do so by reason of urgency".

However, the Joint Committee on Human Rights, which has been critical of the control order regime, said in June that if Parliament were in recess during an emergency, it would be impractical and potentially dangerous to wait for it to return or recall MPs in order to pass the emergency powers. So it may be right that the secretary of state should be able to act swiftly.

None of this is easy. As with President Obama’s early but as yet unfulfilled pledge to close the Guantanamo Bay prison camp, the coalition government is finding it difficult to reduce the “too authoritarian” (the words used in the Coalition’s Programme for Government) powers imposed by the previous government. This near-impossible balancing exercise between security and liberty is the legacy of 9/11, and it will still be felt for years to come. Hopefully we can keep the rain off.

Update: The amendments to the TPIMs Bill to allow the emergency recess powers were defeated on Monday 5 September by 314 votes to 213.

Adam Wagner is a barrister and editor of UK Human Rights Blog, which is written by members of 1 Crown Office Row. Click here to follow Adam on Twitter.