The Legacy of the Crash

by Terrence Casey

  In their 2010 election manifesto, the Conservatives sought to counter the perception that Labour followed US foreign policy too closely and promised adherence to ‘own values’ and ‘moral authority’ (Conservatives, 2010b), which paradoxically suggested a Bush-like sense of déjà vu. This approach by the Coalition government’s dominant party contrasted starkly with Liberal Democrat promises of a more measured and world-integrative approach to foreign policy. As, however, the new government sought to address counterterrorism issues, it was the Liberal Democrats – as the junior partners – who faced the steepest learning curve and who were steered more towards Conservative goals of state protection over civil liberties.

  That said, the new Conservative–Liberal Democrat Coalition government promised to ‘reverse the substantial erosion of civil liberties following Labour’s election loss in 2010, and roll back state intrusion’ (Conservative Party, 2010a, p. 6). The formal post-election agreement that the two parties reached included repealing unnecessary anti-terror and criminal legislation, scrapping ID cards, extending freedom of information, restoring rights to non-violent protest, reviewing libel laws to protect freedom of speech, and ending storage of internet and email records without good reason. The Conservatives were keen ‘to restore trust’ and ‘improve the workings of Government’ (Conservative Party, 2010b) and to this end promised to introduce a National Security Council (within the cabinet), review and consolidate counterterrorism and security laws, and conduct a review of the government strategy aimed at preventing vulnerable people from becoming terrorists (Conservatives, 2010b). Leaving aside the obvious difficulty of ‘spotting emerging risks and dealing with them before they become crises’ (Cameron and Clegg, 2010) in a constantly changing world (for example, the multiple civilian uprisings in the Middle East and North Africa), the new government’s first priority – and the largest single challenge to national security – was addressing what it believed to be the unsustainability of UK central government’s finances and the consequent need to make efficiency savings in all budgets, including those for national security. Thus, when the need for humanitarian military intervention in Libya suddenly arose, for example, criticism was heaped on the government’s Strategic Defence and Security Review (SDSR) from all sides (Moon, 2011, col. 756; Leigh, 2011, col. 772; Jenkin, 2011, col. 793).

  The new government was also somewhat naive in promising speedy delivery on its promises, given its coalitional character and the need therefore for intra-coalition discussions and consultation with relevant interest groups. For instance, the scrapping of the ‘intrusive’ £4.5 billion ID card scheme and National Identity Register was supposed to be achieved within the first 100 days of the government. In the event, Parliament took longer than anticipated to enact the legislation; the bill was not cleared until December 2010. That said, ID cards and the National Identity Register were scrapped (as were plans to introduce fingerprinting in passports), providing evidence of the new government’s rolling back of the counterterror state and a significant achievement for the Conservative–Liberal Democratic Coalition. If Labour had been re-elected in 2010, this policy change would likely not have occurred.

  Still, the new government’s embracing of civil liberties has been selective. Following a large demonstration in London against the government’s spending cuts, Home Secretary Theresa May (Conservative) told the Commons in late March that her government would also consider amending Section 44 of the 2000 Terrorism Act (ruled as illegal by the European Court of Human Rights in January 2010) with a view to using ‘pre-emptive banning orders’ against protesters and banning protesters from covering their face with masks or balaclavas.6 May also refused to rule out dawn raids and snatch-squads against protesters (May, 2011b: col. 27). By March 2011, moreover, the government had announced any plans to stop the police from filming protesters (in contravention of Section 8 of the Human Rights Act) or from uploading images to Crimint, a general database for criminal intelligence (Lewis and Vallée, 2009). Notwithstanding the Coalition Agreement’s promise to ‘end the storage of internet and email records without good reason’, other proposals contradicted this promise, including acquiring and storing internet and email records, which was buried in the government’s SDSR, a new streamlined National Crime Agency and Border Police Command to replace the National Policing Improvement Agency, and the creation of a European Union-wide network of travel databases to record the movements and personal details of millions of air passengers within Europe, which would supplement existing requirements travel between Europe and the US.

  Indeed, clear tensions developed between the two coalition parties supporting Cameron’s government on a number of ‘war on terror’-related issues involving the balance between civil liberties and protection of the public. Evidence of such tensions were manifest in the substantial increase in backbench rebellions in Parliament, which have become the norm rather than the exception, with rebels from the coalition parties expressing doubts over temporary continuation of control orders, detention without trial proposals, and the war in Afghanistan (Cowley and Stuart, 2010, p. 4).7

  In their 2010 election manifesto, the Liberal Democrats were explicit in wanting to scrap control orders (Liberal Democrats, 2010b, p. 94). Ultimately, both parties agreed to review counterterrorism and security powers, including reducing detention without trial from 28 to 14 days (by permitting the de facto January 2011 reversion to 14 days) and making control orders ‘less intrusive and more focused’ (UK Home Office, 2011, p. 6). As headlines, both measures looked like significant departures from the previous Labour government’s policy. With Labour opposition support (Cooper, 2011, col. 311), however, the Cameron government opted to err for public protection over civil liberties concerns, for example, by proposing draft emergency legislation to allow reversion of detention without trial to 28 days ‘in response to multiple coordinated attacks and/ or during multiple large and simultaneous investigations’ (UK Home Office, 2011, p. 14, para. 29). Replacement of the control order system also amounted more to window dressing than to substantive reform. The government’s ‘approach that scrapped control orders and introduced more precisely focused and targeted restrictions, supported by increased covert investigative resources, would mitigate risk while increasing civil liberties’ (ibid., p. 39, para. 20), raised more questions than answers. How is increasing covert investigative resources compatible with increasing civil liberties? What are focused and targeted restrictions? Professing to end the creeping threat to British civil liberties, Home Secretary May generated considerable mirth on opposition benches as she sought to differentiate between her new ostensibly higher test of ‘reasonable belief’ in order to prompt a control order and the previous government’s reliance on ‘reasonable suspicion’, and between an ‘overnight residence requirement’ and ‘curfews’ (May, 2011a, col. 308). Meanwhile, in his report on existing control order legislation, the independent reviewer of terrorist legislation, Lord Carlile (Liberal Democrat), concluded that the existing system ‘continued to function reasonably well’ (Carlile, 2011, p. 1), and criticized the hitherto ‘poorly informed debate’, which had resulted from the exclusion of the then opposition (Liberals and Conservatives) from decision-making (ibid., para. 47, p. 21). In order to avoid future ‘regrettable’ opposition commitments to uninformed positions (ibid., para. 45, p. 20), Carlile recommended discussions on whether the Coalition government’s replacement Terrorism Prevention and Investigation Measures (T-Pims), should include two vetted members of the opposition.

  Ongoing controversy over the European Court of Human Rights’ rulings against the deportation of terror suspects and other issues provided a further source of tension for the Coalition government. Under the 1998 Human Rights Act, the UK cannot deport terror suspects if they are likely to be subjected to torture or degrading human treatment. As part of the review of counterterrorism and security legislation, the Coalition government wanted to explore options that would extend the UK’s ability to deport foreign nationals. Bow
ing to Conservative backbench pressure, Cameron also floated the idea of a British Bill of Rights to replace the European legislation ‘because it is about time we ensured that decisions are made in this Parliament rather than in the courts’ (Cameron, 2011, col. 955).

  Like President Obama, Prime Minister Cameron also committed the Coalition government to military and political efforts against the Taliban in Afghanistan and Pakistan, which he dubbed a ‘necessary war’. In July 2010, however, Cameron announced that the UK would withdraw the 10,000 British troops from Afghanistan by 2015, following a transition period to Afghan control between 2011 and 2014, subject to conditions on the ground. MPs from different parties heavily criticized the announcement, questioning the desirability of pre-announcing to the enemy a withdrawal timetable (albeit a conditional one); thenceforth, Parliament and the public would likely judge Cameron’s performance on Afghanistan by his success in adhering to that deadline. Given Afghanistan’s political history and the views of many of those on the ground, that date looked ambitious. One reason Cameron may have made his announcement was to reassure the UK public that the mission had an end in sight. Polls still showed a majority of Brits (57 percent) opposed to military operations involving British soldiers (Angus Reid/ Public Opinion, 2010b) and the public underestimating the extent of British fatalities in the conflict (365 by mid May 2011). Clearly, Cameron’s government was on the back foot and so under pressure to be seen to be delivering. Evidence of such pressure emerged when Major General Gordon Messenger, strategic communications officer to the Chief of the Defence Staff, told the House of Commons Defence Committee in October 2010 that only recently had resources matched the scale of the challenge in Afghanistan, which neatly coincided with Conservative MPs’ view that the Labour Government had under resourced British troops (UK Parliament, House of Commons Defence Committee, 2010). Three months later – and much more seriously – the Conservative-chaired Foreign Affairs Committee raised doubts about the way the prime minister has developed and communicated the Coalition government’s strategy for withdrawing British forces. They focused in particular on the announcement of a withdrawal date, which they argued ‘may embolden the insurgency or encourage a more general perception among the West’s enemies that its foreign policy commitments are wholly at the mercy of domestic public opinion’. The committee’s highly critical report urged ministers to accelerate attempts to negotiate a ‘political settlement’ with the Taliban and questioned the degree to which actions in Afghanistan actually pertained to the core objective, and whether wider objectives were even attainable (UK Parliament, House of Commons Foreign Affairs Committee, 2011, pp. 74–5). The committee also heard echoes of Blair’s ‘sofa government’ style: Cameron had decided on the 2015 deadline without formally discussing the issue with the cabinet’s National Security Council, which is supposed to oversee Afghan policy (ibid., p. 68). Yet, while Parliament has voiced criticism of these government decisions, as in the US, MPs have paid little attention to the actual conduct of the war, particularly British involvement in extra-judicial attacks by armed drones on so-called ‘high value targets’, and the collateral damage to innocent Afghan civilians (Cole, 2011, p. 20).

  Looking to the future of Britain’s ‘war on terror’, particularly in light of the possible implementation of the Coalition government’s constitutional proposals, the kind of inter-party tensions evident within the current government may become a common feature, making rolling back the British state and returning power to Parliament and the people less likely (Bognador, 2011a). While the public overwhelmingly rejected the introduction of the alternative vote electoral system – which would have made Coalition governments more likely – new proposals introduced in May 2011 to require the House of Lords to be wholly elected would, if implemented, undoubtedly give the chamber added, if not equal, legitimacy to the Commons and necessitate the kind of inter-cameral bargaining and compromise that is conducted in the US, with negative consequences for political accountability and responsibility. Similarly, proposals in the 2011 Parliamentary Voting System and Constituencies Act to reducing membership of the Commons from 650 to 600 without reducing the number of ministerial posts (which constitute the payroll vote) will mean fewer backbenchers available to scrutinize the government. Provisions in the Fixed-term Parliaments Bill to remove the prime minister’s power to call an election could also reduce government responsiveness to Parliament between elections.

  The US and Britain: counterterrorism, executive–legislative relations, and conditionality

  It is clear from the previous analysis that the accretion of executive power in relation to the so-called ‘war on terror’ under the Bush administration and the Blair government has been maintained and, in certain cases, accelerated under their successors, particularly in regard to the military campaigns in Afghanistan and Pakistan, despite some softening of tone under the Obama administration and some changes – and some window dressing – by the new Coalition government under Cameron. Why has this been so?

  First, the threat of terrorist attacks remains and the respective governments’ perceptions of that threat remain high, as it does among the public. Yet, in a democratic society, there can be no simple equation between crises/external shocks as catalyst and increased executive power as product. Much depends also on the actual nature of the crisis/external shock and the ability of executives to define such events/conditions as requiring executive power accretions. Given adequate and appropriate leadership skills and temperament (Langston, 2007; Pfiffner, 2008, pp. 223–48; Tucker, 2009, pp. xxv–xxvi); enhanced politicization and centralization of executive institutions (Bennister, 2008; Moe, 1985; Norton, 2003, 2007); personalized, plebiscitary government and party systems (Foley, 2000; Lowi, 1986, pp. xi–xii, 180; Poguntke and Webb, 2005; Rimmerman, 1993; Rudalevige, 2005), and the need for swift and decisive action at a time of national danger, a president or prime minister will be best positioned to take the policy initiative clothing him/herself in symbolic authority and applying appropriate security rhetoric and public appeals.

  Notwithstanding their more restrained tones, both the Obama and Cameron administrations have remained committed to strong executive action to counter the terrorist threat. Although the actual risk to life remains far less than the perception (Mueller, 2005, 2006), broad public and legislative support has reinforced those commitments even when such actions touched on civil liberties. Framing issues in terms of fighting terrorism can increase support for specific laws, measures, policies and executive leaders (Haider-Markel et al., 2006), which engenders increased support by legislators through a ‘rally round the flag effect’. Poll results for both the US and the UK show strong public support for and acceptance of counterterrorism measures (DSTL, 2010; Pew Research Center, 2010), including government control orders (Kellner, 2011) and use of intelligence obtained through torture (Agiesta 2009; Radford, 2010). When, however, a terrorist attack occurs or is foiled, public pressure mounts for stronger measures at the expense of civil liberties, particularly among those most concerned about being a terrorist victim (Merolla and Zechmeister, 2009; Davis, 2007).

  A priori, the balance of executive–legislative relations across different political systems may react uniformly to crises and external shocks. Yet, Bush and Blair were more successful in strengthening executive power further than were John Howard in Australia and Jean Chrétien, Paul Martin, and Stephen Harper in Canada because their capacity to do so was constrained by parliamentary politics (Larkin and Uhr, 2010; Molloy, 2010). Indeed, these constraints are more important than formal constitutional impediments or the respective number of veto points those systems produce. This chapter has shown that the overall balance of executive–legislative relations in respect to the ‘war on terror’ in the US and the UK has remained stable, and in favor of the executive, although both Congress and Parliament did occasionally check the executive – in the US, by strengthening congressional oversight of the NSA and the intelligence community, by integrating funding f
or the wars in Iraq and Afghanistan insisting on new limits on the USA PATRIOT Act; and in the UK by abandoning the previous Labour government’s plans to introduce ID cards and a National Identity Register, and by reducing the length of detention without charge. In the case of the Obama administration, however, the most significant congressional check – over the proposed closing of Guantánamo – had the effect of maintaining rather than weakening executive discretion and keeping the detainees in judicial limbo. In both systems, moreover, significant attempts to curtail executive power and strengthen civil liberty concerns failed, notably over state secrets and torture in the US and over new control orders in the UK. Ultimately, as with Bush and Blair, public safety and strong executive power trumped strengthening civil liberties and weakening executive discretion.

  Notes

  1. By a five-to-four vote, the US Supreme Court held that the Congress had unconstitutionally stripped the federal courts of jurisdiction over cases filed on behalf of the Guantánamo detainees without providing for any acceptable substitute procedure. The Court insisted that detainees were permitted to file habeas corpus suits to challenge their continued detention.

  2. Fifty percent of those surveyed in June 2009 said they disapproved of closing the facility, according to a Washington Post–ABC News poll, up significantly from a Pew poll in February.

  3. Whether Obama’s targeting al Qaeda leaders for extrajudicial execution in this and other instances violated international law is another matter. Article 23b of The Hague Convention, adopted by the US and other nations in 1907, prohibits ‘assassination, proscription, or outlawry of an enemy, or putting a price upon an enemy’s head, as well as offering a reward for an enemy “dead or alive”.’