As the project enters its final three months, we are busy working on the manuscript for our forthcoming book, to be published by Bristol University Press later this year. In it, we contextualise our analysis of counter-terrorism review by arguing that the UK should now be understood as a counter-terrorist state, by which we mean that counter-terrorism is no longer exceptional or temporary in the UK, but is rather a permanent and pervasive part of the state’s core operations and infrastructure.
So how did the counter-terrorist state emerge in the UK?
The answer to this question requires some historicisation. Counter-terrorism is not just a contemporary phenomenon in the UK. The state has a long history of combating violence against it, first in the post-war era in its counter-insurgency campaigns in ‘Malaya’, Kenya, and Aden, but also at home, following the start of the Troubles in Northern Ireland in the late 1960s. At first, the British Army was deployed at the request of the devolved Northern Irish government to support the Royal Ulster Constabulary’s response to severe rioting, which had arisen out of the civil rights campaign. Following the collapse of the Northern Ireland government in 1972, the UK Parliament assumed responsibility for the governance of Northern Ireland. In doing so, it inherited a heavy security apparatus, one that included an armed police force, the use of the military, and emergency legislation – the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 – which empowered the government to ‘to take all such steps and issue all such orders as may be necessary for preserving the peace and maintaining order’. A year later, Parliament replaced the Special Powers Act with the Northern Ireland (Emergency Provisions) Act 1973, an exceptional law which applied only to Northern Ireland and enabled the arrest of terrorist suspects without a warrant, the proscription of terrorist organisations, detention without trial, and non-jury trial for terrorism-related offences. Violence was not, however, contained in Northern Ireland, and following a number of bombings in Britain in the early 1970s, Parliament enacted anti-terrorism legislation for the whole of the UK. The Prevention of Terrorism (Temporary Provisions) Act 1974 extended the powers of arrest without warrant and proscription to Britain, and established an exclusion regime, which enabled the Home Secretary to exclude terrorist suspects from Britain and return them to Northern Ireland.
These exceptional measures were designed to be a temporary part of the legislative landscape. Each had a sunset clause that meant that the legislation would expire unless renewed; the Northern Ireland (Emergency Provisions) Act 1973 after one year and the Prevention of Terrorism (Temporary Provisions) Act 1974 after six months. Both laws were, however, not only renewed continually throughout the twentieth century, but also expanded, creating new police powers and criminal offences.
In the mid-1990s, the peace process in Northern Ireland called into question the need for ongoing emergency legislation to deal with the violence emanating there. However, a report by Lord Lloyd of Berwick QC, published in 1996, recommended that even in the context of a ‘lasting peace’ in Northern Ireland, other forms of terrorism constituted a sufficient threat to the UK to require counter-terrorism legislation not only to be retained on the statute books, but also to be made permanent. The enactment of the Terrorism Act 2000, the UK’s first permanent counter-terrorism law, marked the culmination of the process by which counter-terrorism legislation became permanent in the UK. However, it also marks the point at which counter-terrorism in general became more clearly and manifestly a pervasive part of the state’s core infrastructure. Over the course of the past two decades, counter-terrorism has become centralised in policy discussions beyond “national security”, and has permeated government policy in a variety of sectors and industries, including the charity sector, banking sector, the aviation, maritime, land transport and public transport sectors, and the telecommunications and internet service providers sector. Counter-terrorism’s sprawl is also evident in immigration and border measures and in citizenship decisions. Three examples demonstrate the proliferation of counter-terrorism into unexpected areas of governance.
First is the statutory Prevent Duty, which was enacted in 2015 and requires specified authorities to ‘have due regard to the need to prevent people from being drawn into terrorism’. These specified authorities include educational establishments ranging from nurseries through to universities, the National Health Service, local government, the police, and prisons. Prevent thus pervades the daily lives of the entire UK public. Second, in the past few years, the Family Courts in the UK have begun dealing with a number of ‘radicalisation cases‘, in which care proceedings have been initiated in respect of children who are deemed to be at risk of radicalisation in the family home, of attempting to travel overseas to join Islamic State, or of engaging in domestic terrorism in the UK. Counter-terrorism is thus now a part of the state’s child protection system. Third, and in specific response to terrorist attacks in 2017 involving vehicles used to harm pedestrians, the government has recently issued new guidance and a code of practice for a rental vehicle security scheme responding to concerns that the rental vehicle industry was not doing enough to prevent terrorists from hiring cars for use in terrorist attacks.
This sprawl of counter-terrorism beyond the narrow field of what was conventionally understood as “national security legislation” has been facilitated by a hegemonic political consensus on counter-terrorism, with both major parties having enacted new legislation and established new sites of activity while in government. Over the past two decades it has become clear that both Labour and Conservative (and Conservative-led) governments consider that the most appropriate (and apparently only) response to terrorism is not just more counter-terrorism, but more counter-terrorism in new and unexpected fields of governance. And all of that on a seemingly permanent basis.
One question this raises is the extent to which counter-terrorism review is itself a part of the counter-terrorist state. Reviews of counter-terrorism have, since the early 1970s, been used to underpin and sometimes justify not only more counter-terrorism, but also different forms of counter-terrorism. Whilst we grapple with this question, we also seek to understand whether and if so how counter-terrorism review might be harnessed to maintain core constitutionalist commitments of accountability, the rule of law, and respect for rights in the United Kingdom.