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The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism

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Abstract

This article argues that the courts, not the Home Secretary, should be empowered to issue Terrorism Prevention and Investigation Measures (TPIMs). It explains that at the heart of the debate are three questions: whether measures like TPIMs should be viewed primarily from the perspective of security or liberty; how we should conceive the executive and the courts; and the empirical question of how these two arms of government answer these questions. The non-mechanistic nature of legal reasoning means that legal reasons may be constructed to fit one’s normative viewpoint on each of the first two questions. Importantly, however, the case law on judicial scrutiny of control orders consistently demonstrates that the courts themselves regard TPIMs as being primarily a restriction on liberty, which require a fair hearing before an independent court. Whilst this does provide some protection of individual rights, the nature of law as an unfinished practice means that for stable protection of individual rights judicial independence must be promoted and nurtured in both the legal and political realms. The failure of the Terrorism Prevention and Investigation Measures Act 2011 to vest the power to issue TPIMs in the courts thus represents a missed opportunity to secure political endorsement of enhanced legal protection of individual liberty in cases involving national security.

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Notes

  1. A (& others) v Secretary of State for the Home Department [2004] UKHL 56.

  2. Secretary of State for the Home Department v JJ & others [2007] UKHL 45.

  3. Secretary of State for the Home Department v AF (No. 3) [2009] UKHL 28.

  4. Whilst the term is borrowed from Edley (1991), my use and application of the term is wider than his.

  5. The first four conditions are: the Home Secretary reasonably believes that the individual is, or has been, involved in terrorism-related activity; some or all of this activity is new terrorism-related activity; the Home Secretary reasonably considers that TPIMs are necessary to protect members of the public from a risk of terrorism; and, the Home Secretary reasonably considers that it is necessary to impose the specified TPIMs on the individual to prevent or restrict the individual’s involvement in terrorism-related activity.

  6. In such cases the TPIM notice must include a statement of urgency, and must be referred to the court immediately after it is served: see schedule 2.

  7. If the decision that condition A, B or C is met is obviously flawed, the court may refuse permission (s 6(7)). If the decision that condition D is met is obviously flawed the court may give permission but give directions as to suitable measures (s 6(9)).

  8. [2009] UKHL 28, [59] per Lord Phillips.

  9. R (on the application of Secretary of State for the Home Department) v BC [2009] EWHC 2927 (Admin).

  10. Hansard HL Deb vol 731 col 341 19 October 2011 (Lord Henley).

  11. See, respectively: part III of the Environmental Protection Act 1990; the Noise Act 1996; and, part VII of the Town and Country Planning Act 1991. The first two are issued by Environmental Health Officers, and the third by Planning Officers. Other examples include Remediation Notices for contaminated land (part IIA of the Environmental Protection Act 1990) and notices controlling noise on construction sites (section 60 of the Control of Pollution Act 1974).

  12. [2004] UKHL 56.

  13. Hansard HC Deb Public Bill Committee Terrorism Prevention and Investigation Measures Bill Seventh Sitting col 221 30 June 2011 (James Brokenshire).

  14. Hansard HL Deb vol 731 col 346 19 October 2011 (Lord Henley).

  15. Secretary of State for the Home Department v AP [2010] UKSC 24, [5] (per Lord Brown). See also the comments of Carnwath LJ in AP v Secretary of State for the Home Department [2009] EWCA Civ 731, [60].

  16. Hansard HC Deb vol 431 col 154 22 February 2005.

  17. Hansard HL Deb vol 731 col 308 19 October 2011 (Lord Rosser).

  18. Hansard HL Deb vol 731 col 309 19 October 2011 (Lord Rosser).

  19. See, for example, Secretary of State for the Home Department v Rehman [2003] 1 AC 153.

  20. Hansard HL Deb vol 731 col 301 19 October 2011 (Lord Carlile).

  21. Hansard HL Deb vol 731 col 291 19 October 2011 (Lord Lloyd).

  22. See, respectively: Crime and Disorder Act 1998; Serious Crime Act 2007; Police and Crime Act 2009; and, Sexual Offences Act 2003.

  23. (2007) 233 CLR 307. The High Court also had to decide whether the Australian control order regime is supported by one or more express or implied heads of legislative power under the Australian Constitution. For discussion of this point, see: Lynch (2008), Roos (2008), and, Saul (2008).

  24. Gleeson CJ also referred to the provision of documents ([30]). The joint judgment of Gummow and Crennan JJ was more circumspect on this point, given the possibility of withholding documents in the interests of national security ([122]–[125]).

  25. Australian Communist Party v Commonwealth (1951) 83 CLR 1. See in particular the judgment of Callinan J at [530]–[533], [582]–[585], [589].

  26. R (on the application of Secretary of State for the Home Department) v BC [2009] EWHC 2927 (Admin).

  27. The claim is also unable to account for the fact that sometimes we want to say that a court has made a mistake as to the law. If law is just a prediction of what a court will hold, there is no conceptual space left to question whether the court misunderstood the law (Leiter 2007: 70).

  28. [2006] EWHC 1000 (Admin).

  29. [2006] EWCA Civ 1140.

  30. Confirmed in BM v Secretary of State for the Home Department [2011] EWCA Civ 366.

  31. Bryan v United Kingdom (1995) 21 EHRR 342.

  32. Hansard HL Deb vol 731 col 297 19 October 2011 (Lord Pannick).

  33. Similar statements have also been made by the Joint Committee on Human Rights (2011) and by the courts themselves. In R (on the application of Secretary of State for the Home Department) v BC [2009] EWHC 2927 (Admin), Collins J stated candidly that section 3(10) of the 2005 Act “does not mean what Parliament intended it to mean” ([72]).

  34. See, for example, R v A [2002] 1 AC 45 and R (Hammond) v Secretary of State for the Home Department [2005] UKHL 69.

  35. In addition to the cases discussed in the main text, see: Secretary of State for the Home Department v Bullivant [2008] EWHC 337 (Admin); Secretary of State for the Home Department v AT and AW [2009] EWHC 512 (Admin); and, BM v Secretary of State for the Home Department [2011] EWCA Civ 366.

  36. [2009] EWHC 142 (Admin).

  37. [2009] EWHC 902 (Admin).

  38. [2009] EWHC 3390 (Admin).

  39. [2010] EWHC 2278 (Admin).

  40. See: Secretary of State for the Home Department v AM [2009] EWHC 572 (Admin); AR v Secretary of State for the Home Department [2009] EWHC 1736 (Admin); and CD v Secretary of State for the Home Department [2011] EWHC 1273 (Admin).

  41. Hansard HL Deb vol 731 col 313 19 October 2011 (Lord Henley).

  42. [2012] EWHC 714 (Admin).

  43. A (& others) v Secretary of State for the Home Department [2004] UKHL 56.

  44. R (on the application of Secretary of State for the Home Department) v BC [2009] EWHC 2927 (Admin).

  45. Saadi v Italy (2009) 49 EHRR 30; Chahal v UK (1997) 23 EHRR 413.

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Acknowledgments

The author would like to thank Christopher Forsyth, Andrew Halpin, John Linarelli and the participants at the 2011 SLS conference at Downing College, University of Cambridge, for their feedback on earlier versions of this article.

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  1. School of Law, Swansea University, Singleton Park, Swansea, SA2 8PP, UK

    Stuart Macdonald

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Macdonald, S. The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism. Criminal Law, Philosophy 9, 265–283 (2015). https://doi.org/10.1007/s11572-013-9255-4

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