Counterterrorism legislation: a question of reaction?

The bombings in London on 7 July 2005 demonstrated a new, if not unexpected, dimension to the terrorist threat from groups perceived to be connected with Al-Qaeda. The bombings rightly and inevitably created a desire to review existing and proposed counterterrorism legislation to ensure that the UK police and security services have the necessary powers to fight terrorism.

Existing laws

There are already several significant pieces of legislation in the UK that are designed to counter terrorism. The Terrorism Act 2000 (TACT) marked an important new phase in anti-terrorism laws in the UK. This Act brought about important modifications and put a greater emphasis on international terrorism.

Authorities in the UK realised even before 11 September 2001 that a new threat was emerging and legally proscribed Al-Qaeda in February 2001. They recognised that Al-Qaeda activities had been occurring within the UK for years and wanted to increase security and reassure the public. These motivating factors and the official response to the events of 11 September 2001 led to the Anti-Terrorism, Crime and Security Act 2001 (ATCSA) being passed. The Act permits detention without trial and introduced a host of policing and criminal law reforms.

There is a wide array of offences - ranging from murder to credit card fraud committed to fund terrorist organisations - that can be used to convict terrorists. Indeed, prior to July 2005, prominent members of the legal profession opined that there was no need for specific legislation on terrorism. However, Lord Carlile of Berriew, the House of Lords' independent reviewer of the Terrorism Bill 2005, has suggested that this view has been far less evident since 7 July 2005 and it is one he does not agree with.

Preventive measures

The Prevention of Terrorism Act, which was introduced in March 2005, sets out a system of methods for dealing with suspected terrorists. It empowers the home secretary to impose control orders to disrupt and restrict individuals when intelligence assessments have shown they are involved in terrorist activities.

These control orders are tailored to the circumstances of individual cases and are based on advice from the Security Service. They can be used to impose bans on internet or mobile phone use, restrictions on movement and travel, restrictions on associations with named individuals, curfews and tagging. The orders can be used in cases involving British or foreign nationals suspected of any terrorist-related activity.

The Act replaced powers allowing the detention of foreigners suspected of terrorism under part 4 of the Anti-Terrorism, Crime and Security Act 2001, which the law lords concluded in their ruling in December 2004 were discriminatory and disproportionate as they only applied to foreign nationals.

Under the provisions of the Act, the Home Secretary can make a control order provided that it is compatible with a person's right to liberty under article 5 of the European Human Rights Convention. The courts must then decide whether issuing the order is justified. Much of the criticism directed at the Act has focused on the involvement of the judiciary in making orders. In any event, neither the authorisation of a politician nor that of a judge can legitimise cases such as this, where the right to a fair trial is bypassed.

Tougher tactics

In the weeks after the 7 July 2005 London bombings, the differences between the UK's and the US's strategies for dealing with terrorism became apparent. Critics in the US believed the UK's existing laws and protections were inadequate and that they led extremists to use the UK as a recruitment centre.

In response to the 7 July bombings, Home Secretary Charles Clarke proposed new laws to combat terrorism. The measures in the Terrorism Bill are designed to help tackle the terrorist threat facing the UK by disrupting terrorist activities at all points in the chain. The Terrorism Bill included proposals to:

The Bill alters the existing legislative framework by amending the the Terrorism Act 2000 in several ways. First, the Bill changes the penalties for some terrorist offences (raising the penalty for possessing materials for terrorist purposes, for example). Second, it extends the powers currently available to the Home Secretary to proscribe groups that glorify terrorism and deal with proscribed organisations that change their names. The Bill also extends the powers of the police to investigate terrorism (by allowing terrorist suspects to be detained with judicial approval for up to three months and allowing for search warrants to be issued, for example).

From the moment the Terrorism Bill was published in October 2005, it was clear that the 90-day detention plan would be controversial. Prime Minister Tony Blair suffered his first Commons defeat since he took office in 1997 when 49 Labour rebels joined with the opposition parties to reject the Government's plans to extend the pre-charge detention period from 14 days to 90 days, opting instead for a 28-day limit. The opposition believed 90 days to be unnecessary and suggested instead that further resources be devoted to decryption and interpretation facilities and that, in strictly controlled circumstances, intercept evidence be allowed in court proceedings.

New anti-terrorism laws on both sides of the Atlantic suggest that moves made by the UK government to clamp down on UK-based radicals are slowly moving the UK towards what many consider a more American-style approach to counterterrorism.

The US has taken a more aggressive tack in dealing with radicals - a stance that has received criticism, particularly from civil liberties groups. Through the USA Patriot Act 2001(USAPA) and USA Patriot Act II 2003 (USAPA II), the US government has gained new powers, allowing it to wiretap phones, confiscate property belonging to suspected terrorists, spy on its own citizens without judicial review and conduct secret searches.

However, some critics maintain that both the US and the UK have been slow to acknowledge the threat posed by domestically-based Islamic extremism, one that Mediterranean countries have been forced to confront much earlier because of their proximity to North Africa and the Middle East. One country that has been cited for implementing comprehensive counterterrorism legislation and measures before 11 September 2001 is France.

The French model

A victim of international terrorism at home and abroad, France has long demonstrated its determination to combat terrorism in all its forms. Long-standing threats have led France to establish coherent legislation and operational mechanisms and to seek international co-operation. This determination was reaffirmed following the terrorist attacks of 11 September 2001, which were followed by straightened internal prevention and international co-operation.

The central tenet of French anti-terrorism legislation is the Act of 9 September 1986. Under the Act, prosecutions against terrorists are conducted centrally, in Paris, but unlike in the UK and US, acts of terrorism are prosecuted as criminal offences punishable with increased sentences.

Terrorist activities are generally understood to be one of a limited list of crimes or common law offences "undertaken by an individual or group with the goal of seriously disrupting public order through intimidation or terror". Terrorist offences are subject to special procedures. Centralised proceedings, investigations and trials take place under a single jurisdiction composed of specialist magistrates acting throughout the national territory. New provisions facilitating France's fight against terrorism have been introduced systematically each year to strengthen legislation and procedural rules.

Reactionary measures

Each of the three countries discussed in this article have suffered terrorist attacks on their own territory and against their citizens abroad. Their experiences, however, have varied greatly in many respects, and their responses to the terrorist threat illustrate these differences. In the US and UK, counterterrorism legislation and measures have been largely reactive and have occurred, often very rapidly, in response to terrorist attacks. This point is particularly well illustrated by the implementation of USAPA as a direct response to the attacks of 11 September 2001 and the introduction of the Terrorism Bill in the UK after the 7 July 2005 bombings in London. Although the groundwork for the latter Bill was being laid before the attacks, the Bill's implementation was hurried through in response to the bombings.

The swift implementation of such measures can serve to reassure the public, but, for obvious reasons, such measures are often particularly aggressive in nature. Their acceptance, domestically and internationally, can be attributed to the fear and panic caused by a terrorist atrocity and by people's desire to right wrongs perpetrated against them. The need to strengthen counterterrorism legislation is widely recognised and accepted by governments and society, but it is of great importance that the consequences of these changes be carefully supervised, as the sweeping measures recently adopted to increase security may harm fundamental human rights if they are not accompanied by strengthened checks and balances.

Rebecca Cox is head of counterterrorism and resilience in RUSI's Homeland Security and Resilience department.