The Home Secretary announced her review of the UK’s counter-terrorism and security powers on 13 July 2010. Last week, the review’s findings and recommendations were published, accompanied by no small measure of rhetorical fanfare over the victory thus secured for civil liberties in the UK.
Throughout the course of this review, we have been engaged in a research project designed to map public views on measures such as Control Orders and pre-charge detention. And, if the review is to address public concerns over these and other powers, our own findings suggest it will largely disappoint. There are some positives; first, the formalisation of the repeal of Section 44 powers pertaining to Stop and Search without suspicion are likely to be welcomed across the British public. Similarly, the reduction of the period of pre-charge detention (a qualified reduction, but an important one nonetheless) also constitutes a move away from a counter-terrorism assemblage described to us as ‘draconian’, ‘incompatible with democracy’ and ‘totalitarian’.
Yet, there are grounds for serious concerns about the nature and status of the reformed counter terrorism apparatus that make any pronouncements of proud days for supporters of civil liberties premature at best.
First, what is striking throughout the review is that the overwhelming source of concern about the Coalition government’s inherited counter terrorism regime is one of operational effectiveness; whether, that is, the measures are useful in the course of their implementation. Now clearly whether counter terrorism powers are effective is a key concern, perhaps even a central one, to their assessment. But this rather narrow criterion cannot be the only concern meriting the revision of such powers . A major issue around the counter terrorism apparatus is the impact that it has upon Britain in general and certain communities in particular.
In our research we have encountered a remarkably widespread and pervasive belief that counter terrorism measures are directed and targeted at ethnic minorities in general, and Muslims in particular. As one respondent put it:
"Since when is [a] Polish guy going to get you know [stopped]… [I]t’s not going to happen, is it? It’s only going to happen if you’re Muslim. All of these are designed to control Muslims."
Importantly, however, it is not only Muslims who feel targeted by these powers, with other ethnic minority groups reporting similar concerns too. Indeed, and worryingly for British democracy, this view of differential treatment leads many individuals to feel detached from the body politic; a detachment that manifests itself in a retreat into political privatism and passivity. This depoliticisation has numerous potential ramifications; even relating to the Review’s own narrow emphasis on security and the prevention of further terrorist attacks. Ethnic minority communities are less likely to cooperate with security services if they feel that they are under the heavy hand and ever-watchful eye of the state.
This problem with the counter terrorism apparatus is noted, very briefly, in the review. But nothing further is said or proposed to ameliorate this situation. Therefore, whilst the review aims to enhance the operational effectiveness of the counter terrorism apparatus, it does nothing to deal with the festering problem that, in certain parts of the UK, government policy is seen to be targeting wide swathes of its own citizens, producing forms of alienation and disengagement which have potentially serious long term consequences relating to social cohesion, equality and citizenship.
One might argue that as the counter terrorism apparatus is ‘re-balanced’, such concerns are dealt with. There are two reasons to doubt this.
First, as suggested at the start, despite the concerted media offensive to promote the review as a resurgent liberalism, closer examination of the proposed changes suggests that in some cases, such as the shift from the Control Order regime to Terrorism Prevention and Investigation Measures (TPIMs) the changes are not as marked as might have been the case. Indeed, regarding TPIMs, the person subject to one may still not see all the evidence against them – something which has caused serious concern amongst the wider population.
Similarly, whilst 14 days is less offensive than 28 days, individuals in this country can still be detained for two weeks without being charged. As many respondents in our research noted, re-establishing one’s life, career and community standing after ‘disappearing’ for a number of days (28 or 14) is not a straightforward matter. Again, the difference between the power to stop and search in a designated area where it is ‘expedient’ for the prevention of terrorism (in Section 44 of the Terrorism Act, which is to be scrapped) and the revised, reserved power to stop and search without suspicion ‘in limited circumstances to protect individual sites… where there are reasonable grounds to suspect an act of terrorism will take place’ does not constitute a dramatic political movement.
The revised counter terrorism apparatus continues to enshrine principles that bend and strain procedural fairness. It is still possible to become subject to serious state power without access to evidence or the ability to challenge detention. The concerns articulated by people with whom we spoke were of principle, not of numbers and amounts. The review seems to focus on a quantitative easing of the apparatus, whilst leaving the broad architecture intact. Taken together, we would argue that the review does little or nothing to restore such procedural fairness or to address the sense that some individuals and communities have of being targeted, and the problems this brings about.
And these problems create challenges and issues in terms of security too. As noted, it has been suggested that disaffection may render counter terrorism efforts counter productive as communities will not cooperate with the police and security services. But security is not simply a quality that states possess. At present, the language of ‘balancing liberty and security’ or ‘rebalancing’ seems to be prominent. Yet, as noted political theorist Jeremy Waldron asks: What is it that we are actually balancing? He concludes that in actuality it is not the liberty of all for the security of all, but something more akin to the security of the majority for the liberties of the minority. This does not provide justice and, for a minority, has a serious and negative impact on their security. In the process this therefore fails also either to ensure or increase security; for the majority or the minority.
One is reminded of the famous maxim often attributed to Benjamin Franklin that "one who would trade liberty for security deserves neither". As people we spoke to in our research confirmed, security is often understood by people in terms akin to liberty and freedom. Security and liberty are not viewed as oppositional goods by many people, which need to be traded off or balanced, but rather as elements on the same continuum. To think that some of one can be traded for some of the other seems erroneous, dangerous, unjust and illiberal. To suggest that a review that continues to do so marks a glorious day for civil liberties (or security) is flawed at best, and specious and fatuous at worst.
Michael Lister is Senior Lecturer in Politics at Oxford Brookes University and co-author of Citizenship in Contemporary Europe (Edinburgh University Press, 2008).
Lee Jarvis is Lecturer in Politics and International Relations at Swansea University and co-author of Terrorism: A Critical Introduction (Palgrave, 2011).