Keeping the ‘Mud-Slinging’ out of a counter-terrorism legislation review

By Tobias Feakin, Director, National Security & Resilience

The new Home Secretary, Theresa May, announced in parliament yesterday that the coalition government intends to conduct a review of key counter-terrorism and security legislation introduced throughout Labour's time in office.  The former director of public prosecutions Lord Macdonald of River Glaven, a Liberal Democrat peer, will provide independent oversight of the review and the human rights organisation Liberty will also be part of the review team. While the 28 day limit on detaining terrorist suspects without charge, control orders, stop and search powers have proved highly unpopular within certain areas of society$ , as has the misuse and misinterpretation of certain counter-terrorism acts, such as the Regulation of Investigatory Powers Act 2000 (RIPA).  However, whilst this announcement is welcomed, if such a review is to take place, it is vital that it does so without an agenda of political point-scoring.

A new threat

In the early 2000s, the police began to grapple with the threat of terrorism that confronted the entire nation. Initial counter-terrorism methods were rather crude, often using premature search warrants to raid houses for information rather than seeking to gather intelligence before acting.

Some advantages to such blunt methods were apparent: they allowed for a greater understanding of the activities at the Finsbury Park mosque and of Abu Hamza's intentions. However, they were also interpreted, particularly by Muslim communities, as evidence of an 'anti-Muslim' sentiment within the police force. The police soon realised that they could not continue to rely on such methods if they were to counter the threat without losing popular support.

The extent and nature of the threat was realised by Counter Terrorist Command with the discovery in 2004 of the 'Fertiliser plot' (Operation Crevice) and of Dihren Barot; both discoveries led to early arrests due to the imminent danger of attack. Indeed it was the Barot case that led the debate on the extension of the number of days an individual could be held without charge. Due to the danger that he posed to the public and the impending attacks that he was preparing, the police were impelled to act, yet they were unable to move pre-emptively due to legislative restrictions which were in place at the time. 

Increasing police powers

Reacting to calls from the police for increased legislative power against this new and highly developed threat, the previous government introduced major counter-terrorist acts allowing the police and security service greater freedom in safeguarding the UK. These developments in counter-terrorism legislation prohibited a wider range of activities associated with preparation for terrorist activities, allowing arrests to be carried out before attacks took place.

Social responses

This flow of new legislative powers during the 2000s was met with stern criticism from aspects of British society; lawyers and analysts felt that they were helping to alienate aspects of our society, eroding our civil liberties and creating an overly security-orientated state.  Whilst these criticisms are not unfounded, it can sometimes be forgotten that these legislative measures were introduced in order to enable the police to do their job in the face of an entirely new threat, and that there were operational requirements which made these laws necessary. 

Keeping politics out of it

Within the context of a legislative review, it is vital that these operational requirements are made clear to society and that the debate does not become a point-scoring opportunity for the political parties. In her announcement the Home Secretary stated that it was her intention to "put right the failures" of the last government. This is not the right attitude to use in constructing the review. 

More important is to emphasise this review as the work of a successful liberal democracy which refuses to succumb to the threat of terrorism.  As the threat changes, a liberal democracy is willing to change with it, in order to reduce the impact made upon everyday life. Terrorism, by its very nature, aims to change and inconvenience our patterns of everyday life and make us fearful of the unknown and unimaginable. It is vital, therefore, that governments continually assess the means they use to counter this threat without adding to the potential inconvenience to the public, especially if those means may be misused or have an undesired effect upon society.

The RIPA

Perhaps the best known of all these pieces of legislation currently being misused is The Regulation of Investigatory Powers Act 2000 (RIPA), which puts a regulatory framework around a range of investigatory powers.

This is done to ensure the powers are used lawfully and in a way that is compatible with the European Convention on Human Rights. It also requires, in particular, that those authorising the use of covert techniques give proper consideration to whether their use is necessary and proportionate.

RIPA regulates the following areas:

• The interception of communications (for instance, the content of telephone calls, e-mails or postal letters)
• The acquisition and disclosure of communications data (information from communications service providers relating to communications)
• The carrying out of covert surveillance
  • in private premises or vehicles ('intrusive surveillance') or
  • in public places but likely to obtain private information about a particular person ('directed surveillance')
• The use of covert human intelligence sources (such as informants or undercover officers)
• Access to electronic data protected by encryption or passwords.

RIPA provides a number of important safeguards:

• It strictly limits the people who can lawfully use covert techniques, the purposes for and conditions in which they can be used and how the material obtained must be handled
• It reserves the more intrusive techniques for intelligence and law enforcement agencies acting against only the most serious crimes, including in the interests of national security
• It provides for the appointment of independent oversight Commissioners and the establishment of an independent tribunal to hear complaints from individuals who believe the techniques have been used inappropriately.

It is the second of these three final safeguards to which authorities are clearly not adhering: there have been at least 10,000 uses of RIPA by local borough councils for various reasons.  One such example taken from The Times on 23 May 2009 stated that:

A LOCAL council has used surveillance powers designed to catch terrorists and prevent serious crime to check how long a member of staff spent in the shower.

Burnley borough council invoked laws set up to safeguard national security to mount a covert operation against one of its own officials because it suspected he was using a gym during office hours.

Internal council papers, obtained under the Freedom of Information Act, revealed that the council decided to mount a "direct surveillance" operation against the official.

Its purpose was "to see if [the] council employee is using gym/showers whilst clocked in".

Rather than interview the official or monitor his attendance overtly, the council deployed human operatives to spy on his movements, including in the changing room. Hidden cameras were not installed. The surveillance was authorised for three months, after which the council concluded that the employee had carried out "personal activities" while at work and had defrauded the council.  

A survey last year found that some local authorities had used RIPA to spy on suspected litter louts or people whose dogs fouled the pavement and to check whether a family really did live in a school catchment area.

Clearly this is one example of legitimate areas of legislation, introduced to counter the terrorist threat in the UK, being misused for purposes other than those they were designed for.

Using evidence, not insults

Whilst it is laudable that this legislative review should take place, it is imperative that it does not turn into a political 'mud-slinging' contest as has occurred so often in past debates, that an evidence-based approach is used, and that  the general public are involved. Those areas of legislation that are proved to be ineffective should be amended and those that are effective should be retained and strengthened. It will be interesting to see how this review of counter-terrorism legislation fits within the broader Defence and Security Review that is currently taking place. The review will shape the UK's strategic direction for the 2010s, for the country's perspective of itself as a nation has a direct bearing on the internal security issues it will face and how it will choose to police them.