Designing ETPIMs around ECHR Review or Normalisation of ‘Preventive’ Non‐Trial‐Based Executive Measures?

AuthorHelen Fenwick
Published date01 September 2013
Date01 September 2013
DOIhttp://doi.org/10.1111/1468-2230.12039
LEGISLATION
Designing ETPIMs around ECHR Review or
Normalisation of ‘Preventive’ Non-Trial-Based
Executive Measures?
Helen Fenwick*
This article considers the transition in 2012 from control orders to more ECHR-compliant
‘terrorism prevention and investigation measures’ under the Terrorism Prevention and Investi-
gation Measures Act 2011. It argues that the interaction between security and liberty over the post
9/11 years has the appearance of a dialogue between courts and the executive that has resulted in
a diminution in the repressive character of non-trial based preventive measures. But such an
impression, it will be contended, is obscuring the recalibration of ECHR rights that has occurred,
easing the path to the introduction of the enhanced version of TPIMs, under the Enhanced
Terrorism Prevention and Investigation Measures Bill. The proposed ETPIMs exhibit many of
the objectionable features of control orders and are currently ready to introduce if the threat
level rises.
INTRODUCTION
The twelve years that have passed since the catastrophic terrorist strike of 9/11
have seen a complex, apparently dialogic, interaction between human rights
and non-trial based counter-terrorist measures in the UK. That interaction has
led to modification of such measures, seeing detention without trial give way
to control orders, which in turn were superseded by terrorism prevention and
investigation measures (TPIMs) under the Terrorism Prevention and Investi-
gation Measures Act 2011 (TPIMA 2011). But the inception of the more
ECHR-compliant TPIMA 2011 was rapidly followed by the introduction of
the Enhanced Terrorism Prevention and Investigation Measures Bill (ETPIM
Bill),1providing for enhanced measures, similar in terms of their more repres-
sive character to control orders, but accompanied by somewhat greater safe-
guards, and ready to be introduced as emergency legislation. The nature of
these two instruments, their ECHR-compliance, and the implications of intro-
ducing ETPIMs in reliance on the domestic control orders jurisprudence, form
the subject of this commentary.
*Professor of Law, Durham University. My thanks are due to the anonymous referees for their helpful
comments.
1 See Home Office, Draft Enhanced Terrorism Prevention and Investigation Measures Bill Cm 8166
(2011).
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(5) MLR 876–908
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
TPIMA 2011 makes provision in section 26 to introduce the enhanced
measures if it is urgent to do so when Parliament is in recess,2but the ETPIM
Bill would allow the measures to be relied on generally in future. It appears to
have been introduced, as discussed below, on the basis that in certain circum-
stances TPIMs might not be viewed as adequate to meet the demands of a
heightened security threat, so ETPIMs could be needed as a supplementary
measure. The Bill has received parliamentary scrutiny3and is available to be
brought forward at any time to meet the demands of an unspecified crisis
situation; the trigger that would allow it to be enacted is not indicated in the
Bill.4If passed, it would grant the Home Secretary additional powers to deal
with exceptional circumstances, and ETPIMs would provide a separate, parallel
regime running alongside the TPIMs scheme. The ETPIM Bill has so far
attracted little academic attention,5but it is in many respects a disturbing, even
extraordinary, legislative measure.
TPIMs, introduced from 2012 onwards, represented, this commentary will
argue, a more favourable compromise between protecting both security and
liberty than control orders had done, but the enhanced version, in contrast,
may reintroduce the human rights challenges control orders presented. The
article identifies a trend post 9/11 towards ‘business as usual’ in human rights
terms and to a ‘normalisation’ of crisis measures. It argues that the interaction
between security and liberty over the post 9/11 years has the appearance of a
dialogue between courts and the executive6that has resulted in a diminution
in the repressive character of non-trial based measures.7But this impression is
obscuring the recalibration of ECHR rights that has occurred, easing the
path to the introduction of ETPIMs which exhibit many of the objectionable
features of control orders. Thus, the complacent idea that ETPIMs are embed-
ded in a process of reanimation of human rights norms requires forceful
interrogation.
2 TPIMA, s 26(1) provides ‘If the Secretary of State considers that it is necessary to do so by reason
of urgency, the Secretary of State may make a temporary enhanced Terrorism Prevention and
Investigation order [while Parliament is in recess]’. An order made under s 26 is made on the same
basis and provides for certain of the same obligations as an order that could be made under the
ETPIM Bill, as discussed below. No temporary ETPIMs have yet been introduced under s 26. For
consideration of s 26 see eg TPIM Bill 2nd Reading HC Deb vol 730 col 1139 5 October 2011
(Lord Hunt).
3 The ETPIM Bill Joint Committee was set up for this purpose; see Draft Enhanced Terrorism
Prevention and Investigation Measures Bill First Report HL 70, HC 495 (27 November 2012).
4ibid, 3. It is to be introduced in response to ‘exceptional circumstances’ which ‘cannot be managed
by any other means’. The circumstances are discussed below.
5 TPIMA has been considered in C. Walker and A. Horne, ‘The Terrorism Prevention and
Investigation Measures Act 2011: ‘One Thing but Not Much the Other?’ (2012) 6 Crim LR 421,
but since TPIMA is the subject, the article only devotes about two pages to ETPIMs: ibid,
427–428.
6 On dialogic theory see P. Yap, ‘Defending Dialogue’ [2012] PL 527.
7 See generally, H. Fenwick and G. Phillipson, ‘Covert Derogations and Judicial Deference:
Redefining Liberty and Due Process in Counter Terrorism Law and Beyond’ (2011) 56 McGill
LJ 864; C. Gearty, ‘The Human Rights Act: An Academic Sceptic Changes His Mind but Not
His Heart’ (2010) 6 EHRLR 582, 585–586.
Helen Fenwick
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. 877
(2013) 76(5) MLR 876–908
THE CHANGING NATURE OF ‘EMERGENCY’ EXECUTIVE
NON-TRIAL-BASED MEASURES POST 9/11
In order to demonstrate that a movement towards normalisation of ‘preventive’
non-trial-based measures8has occurred, it is suggested that three phases, broadly
speaking, could be identified in the post-9/11 response in the UK. In the first,
in the immediate aftermath of the strike, the appearance of a fundamental clash
between security and liberty arose due to the legal reaction to the crisis. This
included detention without trial under Part IV of the Anti-Terrorism, Crime
and Security Act 2001 for suspect non-nationals, necessitating derogation from
Article 5 of the European Convention on Human Rights (ECHR). At that
point the idea that human rights should merely continue to be adhered to was
condemned as naïve or quixotic,9or as a ‘gamble with people’s safety’.10 The
demand that a deferential judicial approach should be taken when the dero-
gation was challenged sought to stifle dialogue,11 relying instead on acceptance
8 See generally for discussion of ‘preventive’ measures in the UK, L. Zedner, ‘Preventive Justice or
Pre-punishment? The Case of Control Orders’ (2007) 60 CLP 174; C. Walker, Terrorism and the
Law (Oxford: OUP, 2011) ch 7. See generally as regards preventive measures: J. Paust, ‘Survey of
Possible Responses to International Terrorism, Prevention, Punishment and Cooperative Action’
(1975) 5 Georgia Journal of International and Comparative Law 431; P. Ruddock, ‘Law as a Preven-
tative Weapon Against Terrorism’ in A. Lynch, E. Macdonald and G. Williams (eds), Law and
Liberty in the War on Terror (Sydney: The Federation Press, 2008); S. B. Elias, ‘Rethinking
“Preventive Detention” from a Comparative Perspective: Three Frameworks for Detaining
Terrorist Suspects’ (2010) 41 Columbia Human Rights Law Review 99. The use of such preventative
measures and interest in introducing them has been apparent post 9/11 in various countries, eg the
Australian Criminal Code Act 1995, para 104.2, 104.3, introduced by the Anti-Terrorism Act
(No 2) 2005. In Canada they have been introduced in the form of security certificates in the
Immigration and Refugee Protection Act 2001, ss 77, 81.
9 For example, the then Prime Minister Tony Blair repeatedly attacked the ‘barmy’ decisions of the
Special Immigration Appeals Commission (SIAC) on deportation of non-national suspected
terrorists, and threatened to use legislation to undermine the outcome: see M. Elliot, ‘The War
on Terror and the United Kingdom’s Constitution’ (2007) 1 European Journal of Legal Studies 1,
14–16. See also Tony Blair’s famous comment nearly a month after the 7/7 attacks: ‘[l]et no one
be in any doubt, the rules of the game are changing’ (S. Jeffery, ‘The Rules of the Game’ The
Guardian 5 August 2005 at http://www.guardian.co.uk/uk/2005/aug/05/july7.uksecurity5 (last
visited 28 April 2013). As Bruce Ackerman puts it: ‘No democratic government can maintain
popular support without acting effectively to calm panic and to prevent a second terrorist strike.
If respect for civil liberties requires governmental paralysis, serious politicians will not hesitate
before sacrificing rights to the war against terrorism. They will only gain popular applause by
brushing civil libertarian objections aside as quixotic’: ‘The Emergency Constitution’ (2004) 113
Yale LJ 1029, 1029.
10 See I. Loader, ‘The Cultural Lives of Security and Rights’ in B. Goold and L. Lazarus (eds),
Security and Human Rights (Portland, OR: Hart, 2007) 27, 39.
11 For example, the Secretary of State argued in A and Others vSecretary of State for the Home Dept
[2005] 2 WLR 87, as regards the claim that Part 4 of the Anti-terrorism, Crime and Security Act
2001 (ACTSA) breached the Article 14 rights of the appellants, that the standard of review was
whether ‘it was legitimately open to the primary decision-makers to draw the dividing line where
they did’, at [86]. The key argument on behalf of the government was: ‘As it was for Parliament
and the Executive to assess the threat facing the nation, so it was for those bodies and not the
courts to judge the response necessary to protect the security of the public. These were matters . . .
calling for an exercise of political and not judicial judgment . . .’, at [107].
Designing ETPIMs around ECHR Review
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited.
878 (2013) 76(5) MLR 876–908

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