Freedom or security: do we really have to choose?

Recent discussions about anti-terrorism legislation have often cited two seemingly opposing views. The first is that: "These are extraordinary times, which call for the introduction of extraordinary measures," as Ken Jones, Chairman of the ACPO Terrorism and Allied Matters Committee and Chief Constable of Sussex Police, commented during a debate about the issuing of control orders against people suspected of terrorist activities, as outlined in the Prevention of Terrorism Bill 2005.

The second view is that: "The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these," as Lord Hoffman said with reference to the Part 4 powers of the Anti-terrorism Crime and Security Act 2001. These powers include immigration legislation, which allows the Home Secretary to certify and detain foreign nationals who are suspected of involvement in international terrorism but cannot be deported from the UK.

These two quotes, different in context and sentiment as they are, highlight the fact that we face two distinct but connected risks as we try to protect ourselves against the threat of international terrorism: the risk from terrorism itself and the risk involved in the measures we take to reduce our vulnerability to terrorism.

Risk can be considered as exposure to danger or the possibility of loss. There are three facets to any risk: the 'threat', which is the driver for the action; the 'vulnerability', which arises from a deficiency in the 'plan' by which the threatened party aims to counter the threat becoming actual; and the 'consequence', which is the loss or injury that is suffered if the actual occurs. A threat does not constitute a risk unless there is a vulnerability that it can exploit to bring about a consequence.

The threat we currently face from international terrorism is often characterised as:

directed against us as a society, rather than specifically against the government;

originating from a loose federation of networked groups, rather than a clearly defined hierarchical organisation;

likely to perpetrate large-scale attacks that are designed to attract global attention, including attacks designed to cause mass civilian fatalities; and

innovative in terms of method of attack and target.

The 'plan' is to combat this threat by using our intelligence services and criminal justice system to capture and convict those suspected of instigating terrorist acts against the UK, while increasing our resilience to large-scale and undefined attacks through nationwide civil contingency planning.

An entirely different threat

However, our intelligence machinery and the tools available to the criminal justice system were largely designed when we faced an entirely different threat. The deficiencies in our 'plan', which give rise to vulnerability, can therefore be characterised as:

an intelligence machinery that was designed to penetrate hierarchical structures rather than loose networks with only loose connections between commanders and foot soldiers and between different cells;

an adversarial court system that has difficulties using evidence that has been obtained clandestinely;

a criminal investigation system that relies on post-incident evidence collection;

a justice system that relies on the threat of a custodial sentence as a deterrent; and

a new and largely untested national civil contingency capability.

Should the threats we face successfully exploit these vulnerabilities, the consequences would most likely be twofold. The first would be the direct effect, on individual lives and society's infrastructure, of a destructive terrorist incident within the UK such as those that have been perpetrated in New York and Washington, Bali or Madrid. The second would be a loss of confidence in the ability of the country's security apparatus to protect its citizens.

However, the measures we take to minimise the risks presented by terrorism give rise to risks of their own. The main threats associated with anti-terrorism measures include:

the restriction of civil liberties for those who are suspected of terrorist activity;

the general erosion of civil liberties within society; and

the potential for punishment without proof of guilt.

The 'plan' is to minimise the impact of these threats through the accurate targeting of anti-terrorism measures. However, because the measures we currently have in place were designed to combat a very different terrorist threat, it is difficult to utilise them accurately against the current threat. Therefore, the deficiencies associated with our current anti-terrorism 'plan' include:

difficulties in identifying suspects and gathering evidence, which can lead to poor execution of the juducial process; and

sensationalist media reporting and a widespread misconception that international terrorism is either religiously or racially motivated, leading to the demonisation of large groups of people.

The consequences associated with the threats and vulnerabilities inherent in our anti-terrorism measures include:

resentment and disenfranchisement among groups affected by the discriminatory use and execution of anti-terrorism legislation; and

the possible creation of terrorist breeding grounds within UK prisons if the use of large-scale arrest and detention leads to internal disenfranchisement.

These two risks - from terrorism and from anti-terrorism measures - are often portrayed as direct opposites: increase one and the other automatically decreases. This implies that we can either increase security, or we can safeguard liberty, but we cannot achieve both simultaneously.

A perceived conflict

Perceived conflicts between UK legislation and the European Convention on Human Rights, to which the UK is a signatory, have heightened this feeling that a choice has to be made between anti-terrorism measures and civil liberties.

Article 15 of the convention states that derogation from some of the convention's other articles is permitted if there is a "state of public emergency threatening the life of the nation" and the measures proposed are "strictly required by the exigencies of the situation". Some opponents of current UK anti-terrorism measures suggest that the current situation does not fulfill one, or both, of these conditions and that the UK's measures therefore contravene the convention. This has led some to call for some of the UK's anti-terrorism laws to be abandoned altogether, while others have called for the UK to pull out of the convention.

However, analysis shows that the vulnerabilities in the UK's plans to manage both the risk from terrorism and the risk from anti-terrorism measures largely coincide. Therefore, taking action to reduce the UK's vulnerabilities to international terrorism may not actually give rise to the adverse consequences for civil liberties that many associate with such measures.

Likewise, striving to ensure that new anti-terrorism measures are compatible with the convention may actually help to reduce the risk from international terrorism.

Achieving the balance

Although achieving this win-win outcome may not be simple, much progress has already been made. Positive examples include a complete reorganisation of our intelligence machinery and the recognition of the need for research and negotiation into an alternative court system for terrorist-related cases. Likewise, our civil contingency capability continues to grow and become more robust.

Other steps to reduce current vulnerabilities include increasing interaction between government and civil society to reduce the levels of alienation, discrimination and disadvantage experienced by some minority communities, and increasing the UK's participation in international conflict resolution.

The real problem for the UK is not that it is impossible to strike a balance between the need for effective anti-terrorism measures and the need to maintain civil liberties, but that it is impossible to know when that balance has been achieved. If strong anti-terrorism measures are justified by an extraordinary situation, failure to define the conditions under which that situation can be considered to have ended strengthens the argument for the new measures to be removed.

But, if the measures are removed while the public still believes they are necessary, a widespread feeling that the country's security has been compromised could result. Militant elements could exploit these fears to enter mainstream politics, private security firms and vigilantism could become more common, and international trade could become increasingly difficult. The removal of anti-terrorism legislation may also result in terrorists being tried as criminals, possibly prompting them to perpetrate larger, more destructive attacks in order to attract more public attention to their cause.

Dr Sandra Bell is the Director of the Homeland Security & Resilience Department at RUSI. This piece was written before recent events in London.