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This month, Max Hill QC, Independent Reviewer of Terrorism Legislation, is due to submit his first annual report on the operation of key anti-terrorism laws in the UK.
The government has reason to be concerned. Theresa May has long been a pioneer of tough anti-terror legislation and has made clear she would be prepared even to get rid of human rights laws that supposedly detract the war against terror.
Hill, on the other hand (the second Independent Review since the office was created), not only opposes the introduction of new measures, but has also expressed his views that special anti-terror laws are unnecessary and should be abolished.
“The point is that terrorism is crime and all terrorists are criminals. As such, they should be arrested, charged and brought before the courts, and the more that can be done under general criminal legislation the better”, he said.
The government’s response so far has been to accuse him of ‘schoolboy errors’ or ‘breathtaking naivety’. But leaving to one side Hill’s wide-range experience litigating anti-terror cases, it is unlikely to be a satisfactory response for long.
Hill’s concerns about counter-terrorism legislation are widely shared and cannot be simply brushed aside. Concerns include the expansion of terrorist offences based on a pre-emptive approach that targets ‘crimes’ before they are even committed, trading dangerously into the realm of ‘thought crime’ (Amber Rudd’s latest proposal includes up to 15 years jail time for viewing ‘terrorist’ content online). Other concerns are the granting of sweeping surveillance and other police powers to the executive deployable on the basis of mere ‘suspicion’ and undermining basic civil liberties.
Then there’s the racialized use of the anti-terrorist toolkit, which entrenches the treatment of Muslim people as second-class citizens subject to different rules. Such legislation has been incrementally developed through the ‘normalisation’ of emergency legislation passed under condition of moral panic without genuine public debate (the Anti-Terrorism Crime and Security Act 2001 was adopted with 16 hours debate in the Commons and 8 days in the Lords).
The government’s argument is that departure from the ordinary criminal law and other principles supposedly at the heart of the British constitution, including the rule of law, is ‘necessary’ to fight the contemporary terrorist threat. But the now often rehashed slogan of the post 9/11 era faces up to several paradoxes.
Many anti-terror laws and practices like preventive detention, free speech restrictions, or the use of secret evidence in fact have a much longer history, stretching to the counter-insurgency practices of British colonial rule. The claim that they are specifically designed to tackle ‘modern’ terrorism distorts the historical record.
Recurrent terrorist attacks cast doubt over whether anti-terror laws actually ‘work’. Indeed, by the government’s own account of the causes of terrorism, such extreme measures would be positively contributing to fuelling violence, given that the Prevent strategy links terrorism to the opposition of democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. To be sure, there are serious flaws with the premises of Prevent. But the point is merely to highlight the contradictions of the government’s counter-terrorism strategy.
Naivety about what?
If Hill is showing any ‘naivety’, it is not about the necessity of anti-terror laws as tools to combat terrorism, but about their broader social and political function, as well as the wider context in which they operate.
From a purely legal perspective, the repeal of domestic anti-terror laws would have no effect on the UK’s international obligations, many of which, like the blacklisting of suspected ‘terrorists’ and the freezing of their funds, are not based on a criminal justice approach to terrorism.
Nor would abolition affect the numerous laws that do not formally bear the label of ‘anti-terror laws’ but have become crucial components of the anti-terrorism toolkit. Under the Immigration Act 2014, for example, citizenship can be revoked where the person has acted ‘in a manner which is seriously prejudicial to the vital interests of the UK’. Over 33 people have been deprived of their citizenship since Theresa May took over as Home Secretary and subsequently Prime Minister, some of whom have since been be killed by drone strikes by the US.
But on a wider level, Hill’s proposals assume that the aim of anti-terror laws is to prevent and punish the commission of terrorist acts. He thus cites the trial and conviction of Fusilier Lee Rigby’s and Jo Cox’s killers as examples where the ordinary law on murder was sufficient.
Yet the aims pursued by anti-terror laws and broader processes of securitisation are far more complex. Repressive and racialized anti-terror laws are not only a means to an end (i.e. a means to combatting terrorism), but also appear to pursue a variety of social and political goals (e.g. to exclude particular individuals and groups from the operation of the ordinary law and enable State control over their actions). Proposals to scrap anti-terror laws would therefore need to engage more deeply with the nature and purpose of anti-terrorism laws as tools of social exclusion and control.
Hill’s proposals, however, come at a significant political conjuncture, opposing two very different viewpoints not only on counter-terrorism legislation, but on the role and nature of the State more generally.
Proposals to repeal anti-terror laws may be naïve under a government which is predicated upon a neat demarcation between the political and economic realms and for whom its responsibility to keep the public safe is to be discharged through a strong security apparatus.
But the same may not be true under a Corbyn government. Corbyn has consistently voted against anti-terrorism laws ever since he entered Parliament in 1983. His vision of government also rests on a far more polycentric conception of ‘security’, one where understanding and tackling the causes of terrorism would go hand in hand with a broader rethinking of economic, social and foreign policies. Such a vision would engender precisely the kind of (richer) inquiry that a proper assessment of the supposed ‘necessity’ of anti-terror laws requires.
In a different political context, Hill’s proposals may therefore turn into an opportunity, not only to get rid of deeply repressive, racialised and divisive laws, but also to begin the work of addressing the deeper ‘political and societal’ issues that, as Hill himself observed, produce and underpin the anti-terrorism framework.