Counter-terrorism: How do we ensure the state is accountable?

Counter-terrorism measures are proliferating around the world, yet little is known about the accountability and review mechanisms placed on them.

Counter-terrorism legislation, instruments and policies are proliferating throughout the world, and becoming permanent modes of governance, yet too little is known about the accountability and review mechanisms placed on them. A team of researchers at the University of Birmingham and the University of Oxford, are conducting an in-depth, first-of-its kind analysis of UK counter-terrorism policy, to optimise accountability.

Over the past two decades, state counter-terrorism activities have grown in scale and reach. The threats are, of course, both real and ongoing; in 2017, there were 10,900 attacks globally, killing over 26,400 people, and that high figure is down considerably from 2014, which saw 17,000 attacks, and over 45,000 deaths. 

Yet how counter-terrorism measures are evolving is deeply problematic. Rather than targeted, time-bound measures, they are highly proliferative and inscrutable, building layer upon layer of special powers and exemptions from conventional criminal law, with little assessment of the effectiveness of policies, instruments and strategies used, despite the risks they pose to human rights, democracy and the rule of law.  One study found that of 88 legally binding counter-terrorism measures in the EU between 2001 and 2013, one third contained no formal review clauses.

Counter-terrorism measures can directly undermine human rights and freedoms, involving deportation, trial without jury, mass surveillance and data retention, to name just a few. Counter-terrorism can be applied cynically to crack down on dissent and political opposition, a claim levelled for example at Turkey and Indonesia just last year. 

As well as posing dangers of these kinds to rights and dissent, counter-terrorism laws and policies also call into question our ability to ensure that states are accountable for the ways in which they use counter-terrorism powers, laws, and policies. In particular, they challenge us to ask whether, and if so how, states can be called to account for how, when, and with what (foreseen and unanticipated) consequences they are using counter-terrorism. Aiming to improve transparency and accountability in counter-terrorism, a team of experts, led by Fiona de Londras, professor of global legal studies at the University of Birmingham, are examining counter-terrorism in the UK.

Interrogating UK counter-terrorism policy 

UK-based terrorism predates the risks that exist today; for example, over 3,500 people died between 1969 and 1998 due to the conflict in Northern Ireland. In 2000, the government introduced its first permanent, UK-wide counter-terrorism legislation; the Terrorism Act increased the power of the Home Office and police, including allowing more stop-and-search measures, allowing detention for up to seven days, widening the definitions of terrorism, and creating new offences, including for financing or supporting terrorism.  

In 2003, the government launched its first coordinated, pan-government anti-terrorism strategy, called CONTEST, with four objectives: Pursue (stopping terrorist attacks), Prevent (stopping people becoming terrorists or supporting terrorism), Protect (strengthening the country against attack) and Prepare (mitigating the impacts of attack). CONTEST is still in place today, having undergone several rounds of review and elaboration. Since its launch the UK has suffered multiple attacks, from the July 2005 London bombings to the 2017 attacks in Westminster Bridge, Manchester Arena, and London Bridge. That year, the Conservative manifesto, Forward Together, pledged more funding for counter-terrorism and security, committed to creating new criminal offences, and promised to establish a commission for countering extremism.  

The steady expansion of counter-terrorism regulations and powers has in effect created a permanent legal structure, going beyond the normal criminal law, and begging the question of what accountability mechanisms, if any, are in place to ensure the review of this structure in order to ascertain its effectiveness. “Conventional legal approaches have framed counter-terrorism as a temporary activity undertaken by states in the face of a stable threat, to assuage risk and return to normality,” says Professor de Londras.  “They allow states to take measures they cannot in other spheres, such as greater interference with civil rights, predicated on the idea that such measures are temporary”. 

A permanent mode of governance

The approach is problematic, argues de Londras, when counter-terrorism becomes a “permanent mode of governance”, which includes institutions and actors that are ‘exceptional’ when compared to the ‘ordinary’ criminal justice system. This can include closed court proceedings that contravene the principles of open justice, and greater latitude for the police, such as longer periods of pre-charge detention. There may well be very sound operational reasons why, in principle, confidentiality and special powers might be needed, but they can only be justified if there is accountability and transparency as to how, when, and why the powers are used and, as importantly, as to their effectiveness and impacts on wider society. The ‘necessity’ claim - that counter-terrorism requires exceptional rules and procedures because of the gravity of the risk, no further questions asked - presupposes evidence that they at least work. 

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The Royal Courts of Justice (the Law Courts) house the High Court and the House of Appeal of England and Wales.
 

“We have a permanent infrastructure and edifice of counter-terrorism law, but so far it is arguable that we do not have a system to ask fundamental questions about how it works,” says de Londras. “In other words, we have not matched that permanence with systems and structures to ensure the government is accountable”. The danger is that ordinary mechanisms of checks and balances - like questioning in parliament, challenges in court, or a wider public conversation – may be more difficult or insufficient in the context of counter-terrorism because of of the limited information about what the counter-terrorist state is doing on a daily basis.

Maximising accountability

Funded by the Joseph Rowntree Charitable Trust, de Londras is now leading a research project with collaborators Dr Lydia Morgan, research fellow at the University of Birmingham, and Dr Jessie Blackbourn, research fellow at the University of Oxford.  The work is informed by extensive stakeholder interviews with individuals ranging from former senior members of government, to those undertaking legally mandated reviews, and members of civil society.  The goal is to work out “how things work in reality” says de Londras.  “Our project is asking whether there are systems in place to review counter-terrorism and enhance accountability, and if there are, how do they work and are they effective? What would make them effective or ineffective, and what can be done to maximise accountability?”

Numerous methods of scrutinising counter-terrorism are already in place. Statistics are gathered and published on issues including terrorism-linked arrests, the use of stop and search legislation, pre-charge detention periods, and prosecutions and convictions. The Independent Reviewer of Terrorism Legislation also plays a unique role, working independently from government but with access and security clearance to sensitive national security information and personnel. 

Yet de Londras and her team are finding that, given the amorphous, sprawling nature of counter-terrorism as practiced, there are accountability gaps and blind spots with no institution empowered to survey the full breadth of counter-terrorism state measures, nor mechanisms for periodic review. Quantitative transparency measures, like statistical reporting, also risk ‘false precision’. They might reveal how many times a given power has been invoked, but not the impact of that on the ‘suspect’ communities to which it is directed. 

“Let’s say a referral power is formally exercised on 100 people. It’s likely there were more people who were considered, who were engaged with and brought to the attention of the state in some way but in respect of whom it was decided not to exercise the power. This does not get captured in the statistics because no formal action was taken,” de Londras explains. Yet every interaction with this counter-terrorist state can impact on people’s lives deeply; their sense of belonging, community engagement, public trust in the state, and the daily experience of simply living in the state. Surveillance, a consistent feature of UK counter-terrorism policy in both the Labour and Conservative eras, can fray the social fabric, reduce trust between communities, and put communities on a defensive footing in ways that are ultimately counterproductive. 

The Prevent strategy has, in this regard, been a more controversial facet of CONTEST-era policy. It places a statutory duty on civilian professionals, including schools, NHS trusts and local authorities, to report concerns about people at risk of extremism. This amounts to a far-reaching expansion of the state’s ‘eyes’. Critics say Prevent is fostering Islamophobia and targeting surveillance on Muslim communities.

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The Prevent strategy is the preventative strand of the government anti-terrorism strategy CONTEST - stopping people becoming terroists or supporting terrorism in the UK and overseas.
 

Prevent requires people such as teachers, nurses, doctors and university lecturers to report when they come across patients, students or pupils who they consider to be ‘at risk’ of extremism. Under such a programme, “we may become parts of the counterterrorism state, but in unexpected ways,” says de Londras. “If I see a police officer in the street, I know that person represents the state because of their uniform. That isn’t the case in a classroom, or a doctor’s surgery. Does the person know they are interacting with the state?”  Prevent diffuses state power through many social actors, raising questions for us “as a polity, about how we make the state accountable. If we, the people, are going to accept Prevent, the state has a duty to assure us that it is effective”. The Home Office recently announced the first independent review of Prevent in light of growing criticisms of the strategy.  

A wide cast of actors

de Londras acknowledges that counter-terrorism is a sprawling phenomena, and not something which can easily be placed within a single unit of government. Counter-terrorism review is also emerging and evolving. As such, there is a wide cast of actors, each carrying out the tasks to which it is best suited. “It’s interesting to see that in an unplanned, undesigned way, there is something like a counter-terrorism review division of labour, from politicians to media to courts to reviewers and NGOs. Somehow there is a synergy or effectiveness about that”. This is a form of ‘emergent’ governance, she claims, in which all actors are finding their way. Each can play the role to which it is best suited, but that requires a systematic stock-take. 

“We wouldn’t expect that an MP standing up to question a minister would be asking the same kinds of questions as a court about whether a power was lawfully exercised. Neither would a lawyer be able to ask questions about how a community feels compared to, say, an NGO. It would be difficult to imagine a single entity that could do all of it, elicit all the information, ask all the questions, and make challenging observations or proposals”. 

The University of Birmingham project will map counter-terrorism review in the UK, and propose reforms where necessary to ensure good governance. Only by rigorously analysing counter-terrorism as it is practiced, and widening the lens of review beyond raw statistics to include its externalities and social impacts, can the UK be confident that its permanent infrastructure for fighting terrorism is effective and the people be assured that the state remains accountable. 

Banner image credit: Mark Bridger / Alamy Stock Photo
 

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