The latest issue of the King’s Law Journal is a special reflection on ‘civil liberties under Conservative-led governments since 2010′. The papers within the issue cover a wide range of topics including human rights protection across what Colin Harvey calls the “fractured union” of the UK, to the European Social Charter discussed by Colm O’Cinnéide.
My colleague Lydia Morgan and I have a paper on counter-terrorism law and policy (“Is there a Conservative counter-terrorism?”), wanting to question whether there is something distinctive about the Conservative approach to counter-terrorism in the post-2010 era when compared with what came before it. In the paper we find that actually there is a remarkable level of substantive continuity between New Labour governments from 1997-2010 and the 2010+ approach in Conservative-Led governments. The Blair/Brown approach in turn is deeply informed by what preceded it, especially in Northern Ireland, so that in fact there is a fairly wide and deep consensus about some core commitments within UK counter-terrorism law. Those core commitments are: a focus on prevention, an embrace of surveillance, and a manifestation of human rights scepticism in the counter-terrorism context.
While it is true that there are some variations ‘around the edges’ of how those commitments are instantiated in UK counter-terrorism law across the last 17 or so years, the sense that pursuing those three core commitments is appropriate and security-enhancing is common. In the paper, we demonstrate this continuity and consensus by engaging in depth with law and policy advances across the four primary government formations in that time period.
Now, the fact one can observe these continuities and consensus does not, of course, mean that the underpinnings of Labour and Conservative politics of counter-terrorism are the same: as we discuss in the last part of the paper there are particular Conservative political philosophies of continuity, control, and scepticism that provide the ‘ideological’ foundations for Conservative counter-terrorism. In contrast, the dissonance between New Labour’s zeal for constitution reform to more fully centre the authority of law and its seemingly enthusiastic embrace of a rights-repressive approach to counter-terrorism seems notable, so that maybe the continuities in substance that we observe do not mean that there is not something we could call a ‘Conservative’ approach to counter-terrorism per se. As we observe
Does this mean that there is nothing that we can discern or characterise as a Conservative counter-terrorism? Partially. Certainly, the rationales that underpin post-2010 approaches to counter-terrorism do seem to have a Conservative particularity. The construction of prevention as a duty of the state rather than an approach to government reflects a Conservative commitment to paternalistic statehood undertaken for the good of the populace. As David Willets said as a young MP, Conservatives would rather ‘trust in community, with its appeals to deference, to convention and to authority’ than in law, rights, or courts. For many Conservatives, this simply reflects a belief in what Omand has called ‘securitas’: the public value of security in which protecting the state is co-extensive with individual rights rather than justified by them.
So, what does all this mean for the future of counter-terrorism in the UK? Our conclusion is that it points clearly to the proposition that radical ruptures in approach that may be needed to reimagine and ‘rebalance’ our approach to counter-terrorism cannot be achieved by simply political change; we cannot simply vote out repressive and over-zealous counter-terrorism. Instead, a newly calibrated political commitment to a less repressive counter-terrorism is what is required. And there is sign of it emerging. As we conclude:
This leaves one then to wonder what the future of counter-terrorism in the UK might be. There is no indication that prevention, surveillance, and human rights excep- tionalism might be shifted from their central location within the counter-terrorist context. In For the Many, Not the Few Corbyn’s Labour pledged to ‘always provide our security agencies with the resources and the powers they need to protect our country and keep us all safe’ while ‘ensur[ing] that such powers do not weaken our individual rights or civil liberties’; to engage in investigatory powers that are ‘both proportionate and necessary’ and to ‘reintroduce effective judicial oversight over how and when they are used’. While Prevent would be reviewed ‘with a view to assessing both its effectiveness and its potential to alienate minority communities’, it was not to be abandoned; indeed, a Labour government would ‘address the government’s failure to take any effective new measures against a growing problem of extreme or violentradicalisation’. While Labour’s vision accepts the ability of its counter-terrorist measures to isolate, the distance from the Conservative perspective is not that great. The Conservatives’ Forward Together pledged more funding for counter-terrorism and security, new criminal offences and aggravated offences to tackle extremism (singling out ‘Islamist extremism’ in particular), and to establish the Commission for Counter- ing Extremism, which they did in January 2018.
Unfortunately, nothing in this suggests a change of direction, not to mention the radical rupturing of the current counter-terrorist consensus and embrace of a disposi- tional shift towards security, risk and rights that would be needed effectively to break the counter-terrorism consensus and continuity in approach outlined here.