Here we go again. The undoubted threat represented by ISIS and the return of its recruits to the UK is leading to calls for new banning orders for extremist groups, new civil powers to target extremists, and measures to target persons even when have actually not broken the law. It has also led to proposals to revoke the passports of returning British citizens, a power already being used after it was introduced in April this year via royal prerogative executive powers – an anachronistic means of acquiring new powers without explicit parliamentary authority. The emphasis is being put on strengthening terrorism prevention and investigation measures (TPIMs) which replaced control orders and are almost identical with them, when the independent reviewer of terrorism legislation David Anderson has recommended stronger ‘locational constraints’ and required attendance at probation service meetings, though these are unlikely to make a decisive difference.
Two key questions arise? Are these proposals justified and will they work? On the latter point, control orders failed for several reasons. Blair tried to bring in 90 days detention without charge, but was roundly defeated in Parliament on the grounds that this was far too extensive a removal of liberty without the right to know what one is charged with (habeas corpus). Control orders also did not achieve their purpose since several of those made subject to them simply absconded. Even more concerning was that only person on whom a control order was imposed was later charged with a terrorist offence, and even in that case he was not convicted.
Nor can control orders be readily justified. Under the special procedure developed in these cases, the controlee would be given a special advocate who would argue the case on his behalf having been shown the evidence brought against him, but the person himself would still not be told what the charges were and therefore unable to argue the case in his own defence. There must also remain open questions about both the reliability and comprehensiveness of the data provided by the security services to the special advocate, as well as concerns about the acceptability and role of a special advocate chosen by the State, not the individual himself.
It is important to note too that there are already powers to prosecute returning ISIS recruits under the Terrorism Acts of 2000 and 2006, and that rendering them automatically stateless is contrary to many UK treaty obligations. In addition it should be remembered that, notoriously, section 44 of the Terrorism Act 2000 has been extended to use against protesters on extending Heathrow and even heckling at a Labour party conference. Today’s extremists can soon become tomorrow’s dissidents. Above all we need to be on our guard that if we believe that civil rights, democracy, pluralism and the rule of law are essential British principles, as Cameron himself declared in 2007, we should not act now in defence of those principles in a manner that patently undermines them.