Lord Carlile Speaks on British Counterterrorism Law

Hugo Rosemont, a Security Policy Adviser to the UK security industry and a doctoral student, writes in with the following account of a speech in London by Lord Carlile, who served until recently as the British government's independent reviewer of terrorism legislation. Rosemont, who blogs at www.hugorosemont.com, summarizes the event as follows:

On October 3, 2011, the International Centre for the Study of Radicalisation and Political violence (ICSR) at King’s College, London, provided the platform for the Rt Hon. The Lord Carlile of Berriew QC to reflect on the state of counter-terrorism law in the United Kingdom. The occasion was the inaugural Zafrullah Khan Lecture, in honour of the celebrated international jurist, when a packed crowd made up of lawyers, politicians, senior police officers, academics and other interested observers (including this author) packed the University’s Council Room on a swelteringly hot “autumn” evening. Lord Carlile served as the UK Government’s independent reviewer of terrorism legislation from 2001 to 2011 - accepting the position two hours before the September 11 terrorist atrocities took place - and so is particularly well placed to provide his thoughts on this subject ten years after 9/11. The speech covered observations on a wide array of relevant topics but, for the sake of brevity, I will focus only on the key areas of interest. These were the state of British counter-terrorism law, the principles that should underpin counter-terrorism policy and legislation, and the impact on the legislative process of the politics of the (Conservative/Liberal Democrat) coalition Government. One of the difficulties with counter-terrorism law and policy, the speaker kicked off, is that everyone thinks they know something about it. (Author’s note: for the avoidance of doubt, clearly the readers of Lawfare do!). Whilst the much missed late Professor Paul Wilkinson was clear that around 95% of material relating to terrorism is in the public domain, there exists a “residue of secret material” that it is not possible to share. There is thus a difficulty in the ability of the authorities to share information with the wider public and, often, the Courts. “Trust me,” the story goes. Lord Carlile explained that up until recently he had had the privilege of seeing information that others cannot see, before relaying a clear sense of frustration at his Parliamentary colleagues’ inability to consider evidence-based analysis before political aspiration. He stated instead, perhaps somewhat uncharitably, that when it comes to the formation of counter-terrorism legislation, the average attention span of a British Member of Parliament is around seven seconds. Despite being a Liberal Democrat peer in the House of Lords himself, he would continue to relay his distaste for the politicisation of counter-terrorism law and policy. He asserted, for example, that Parliament is not the right place to pour over the mistakes that will inevitably be made in counter-terrorism policy. He felt that David Davis MP, the former Conservative Party leadership contender, had acted disgracefully in resigning in 2008 to trigger a by-election (read special election) in order to campaign over the state of civil liberties in the UK. The speaker then delivered masterful accounts of the differences between threats and risks (for example, there is a risk of terrorism during the 2012 Olympics, but there is not not necessarily any known threat), and those between intelligence and evidence (intelligence being based on evidence), before providing a justification of some of the more controversial counter-terrorism laws implemented in Britain since 9/11. “Control orders” were introduced, for example, because of the reality that senior lawyers will test the admissibility of evidence in court. In the end, the authorities could neither allow particularly sensitive information to be broadcast in court nor permit terrorist suspects to roam the streets. An alternative solution was required; one which meant the Home Secretary could place a variety of new restrictions on the liberty of suspects. Carlile argued that counter-terrorism policy is an art not a science. But that does not mean that lessons can’t be learnt, or that counter-terrorism responses should operate outside of the rule of law. The speaker delivered a tour de force on “what to do” in counter-terrorism policy and law. In no particular order, I present elements of the Carlile doctrine:

• Islamophobia must not be enshrined in counter-terrorism law;
• It is not right to hold people in custody if they are not charged (he stated that the case of the Belmarsh Detainees was “a very serious mistake”);
• Even if they are not used, the installation of surveillance cameras in certain areas (e.g. ANPR systems in Birmingham) will lead to the perception that communities are being spied upon;
• A sense of victimhood will be preyed upon by extremists; It is vital to adopt proportionate language in the area of counter-terrorism law and policy;
• Governments must choose their friends wisely - they must not feed the problem;
• Internationally, the imposition of ethical standards on other countries must be avoided;
• Where we might disagree with the security of policies of other allied countries, for example in Israel or in Pakistan, we need to remember we do not live in a situation where a certain threat presents itself every day.

Against this backdrop, Lord Carlile concluded his lecture with a highly critical take on the coalition Government’s recent proposed changes to control orders. It should not be forgotten that prior to the 2010 General Election the Liberal Democrats had pledged to abolish these measures, and that the (now majority coalition partner) Conservative party had merely pledged to undertake a review of counter-terrorism legislation. True to form, he argued, the reform to this power would be likely to result in a messy compromise. For Lord Carlile, the particularly worrying proposed change is that the so-called “relocation power” (whereby terrorist suspects are moved to a new home away from any known associates) is to be removed, and developed into reserve legislation to be used only in an emergency (and even then debated in Parliament). In his view, the evidence shows that relocation is needed as a counter-terrorism power and that it is supported by most judges. He argues that it would be total nonsense for individual cases to be brought before the legislature rather than in front of the courts. This is not to mention the legal questions that would be raised. Why is the Government “setting its face” against this measure? This is because of what Lord Carlile says is now euphemistically called “coalition politics.” Regrettably, for him, the dynamics within the coalition Government pose challenges to achieving an effective replacement for this regime. This may therefore result in “disreputable pragmatism” or “parliamentary fudge,” in the same way that the legally permissible period of pre-charge detention of terrorist suspects under normal circumstances had been reduced to 14 days from 28 in the UK. Tomorrow, the House of Lords will complete its second reading of the new legislation, which introduces so-called “Terrorism Prevention and Investigation Measures” (TPIMs) as a replacement for control orders. Lord Carlile argued in conclusion that the current balance of the proposed legislation in favour of terrorist suspects is wrong and that TPIMs should include the option for relocation (subject to review after the 2012 Olympics). Lord Carlile continued to express concerns about the quality of British counter-terrorism legislation during Q&As; at one stage he offered the forthright view that “UK immigration law as it stands allows terrorists to stay in the country,” arguing that this needs to be urgently reviewed. But it was the last two questions of the evening that struck me as particularly fitting to end this report for Lawfare. Asked if the UK had achieved the right balance on whether to adopt a criminal justice or war model in its counter-terrorism efforts, Lord Carlile argued that the expression the “War on Terrorism” had done more harm than good and that there should be greater emphasis on strengthening international criminal justice models. In response to a question on how to cope in a legal sense with individuals such as Al-Aulaqi, where an individual may incite terrorism acts but not have their fingerprints on the detonator, Lord Carlile replied that had he been located in Southend-on-Sea (i.e. in Essex, UK) he could have undeniably been brought to trial on charges of incitement to terrorism. Whilst he recognised that international law is a different creature, he could see no reason in principle why it should be any different. Lord Carlile always provides a master class on the state of counter-terrorism law and I would recommend his speech to anyone who is remotely interested in the UK’s experience. In his latest account of the challenges and issues, it became evident that he feels unconstrained to voice an opinion on what he sees as the negative impact of coalition politics on the effectiveness (or otherwise) of proposed counter-terrorism legislation. Some may find his recommendations distasteful; others may see them as too soft. Either way it is clear that Lord Carlile has not given up holding the British Government to account.