Appreciation

Mark Tushnet has made a considerable contribution to constitutional scholarship, both in his home territory of the United States and across the wider common law world. It would be difficult to summarise each and every dimension of his rich work. However, a recurring motif has been the highlighting of the radical indeterminacy of the norms of constitutional law and the way its inherent limitations and ideological predispositions are often cloaked by rhetoric. He has consistently pared away many of the illusions that can foster a self-congratulatory complacency among the apostles and acolytes of liberal constitutionalism. However, his work has not been solely critical and deconstructive in nature: Tushnet has also emphasised the persisting centrality of political processes in the operation of the modern constitutional state and the need for legal scholars to come to grips with how these processes function.

These themes surface again in this paper, which represents a thought-provoking extension of his recent work on how constitutional democracies can control the use of emergency powers (Tushnet, Reference Tushnet2003, Reference Tushnet2005). It carries forward an intriguing debate in US academic journals about the relationship of such emergency powers with conventional constitutional controls (see e.g. Ackerman, Reference Ackerman2004; Cole, Reference Cole2004; Gross, Reference Gross2003; Gross and Ní Aoláin, Reference Gross and NÍ aolÁin2006; Posner, Reference Posner2006). However, the arguments in this paper are not confined to the US context: Tushnet suggests his analysis should hold good for most ‘reasonably well-functioning’ constitutional democracies, and draws upon examples from the US, Canada and the UK.Footnote ² His prime concern is to examine how political processes can exercise some controlling effect on the use of emergency powers. In keeping with the recurring themes of his work, he expresses strong scepticism about the effectiveness of legal mechanisms as useful tools for reining in the executive in times of emergency and crisis: in contrast, he outlines how various forms of political interplay can exercise a restraining effect on the use and abuse of special powers.

This analysis is important because it draws attention to the often-overlooked impact of political dynamics on the use of emergency powers. There is sometimes an obsessive concern in the academic literature with the legal battlegrounds on which skirmishes about emergency powers are fought out: this can obscure the often more significant manoeuvres being played out on the political front. In contrast, this paper foregrounds the political. It also provides a useful theoretical account of how different types of interaction between different political actors may produce different types of impact. Much of Tushnet’s analysis appears to be on the mark. At times, he may overplay or downplay the possible influence of certain political actors, but in general his account of the political dynamics appears convincing within its own terms of reference.

Critique

However, perhaps ironically given Tushnet’s customary keen critical edge, his analysis appears at times to be too ready to assume the openness of political processes in times of emergency. Some critical voices may find some niche in the political ecosystem from which to exercise a moderating influence. However, their impact may be minimal. In the ‘state of exception’ that is often triggered by an emergency, the executive has an enhanced ability to set the security agenda: it therefore can often control the terms of any political debate. As a consequence of this, it can be very difficult for dissenting opinions to make themselves heard, at least in the short to medium term. The political dynamics that Tushnet accurately describes can exercise a moderating influence, but this is usually of limited use and takes time to have any real impact (both defects he associates with the legal process).

Over the long term, dissent may have an impact, but it is precisely in the heat of the emergency where abuses of emergency powers usually occur. Elsewhere (Tushnet, Reference Tushnet2003), Tushnet has argued that the way in which critical voices make themselves heard over the long term ensures a degree of ‘social learning’, whereby lessons learnt from past mistakes are applied via the political process to reduce the incidence of future abuses of special powers. However, political processes by themselves appear to be both slow learners and poor teachers. The lessons of past mistakes are often not absorbed, or the lessons that are drawn from the past are not intelligently applied to new circumstances.

Also, political systems are notoriously prone in times of emergency to infection by powerful viruses with a strong track record of infecting and weakening the body politic. The logic of demands for ‘security’ to take priority over lax civil libertarianism, combined with the instinctive suspicion of the alien ‘Other’ that regularly resurfaces in times of threat, can be difficult to resist in times of crises (Loader and Walker, Reference Loader and Walker2007; Marks, Reference Marks2006). Perhaps reflecting a wider problem with the health of current forms of democratic governance, political processes by themselves appear inadequate to control the abuse of emergency powers. Tushnet paints too rosy a view of their usefulness in times of threat and panic.

Are constitutional democracies therefore doomed to repeat a cycle of panic, overreaction, error and repentance over and over, whenever emergencies recur? A pessimistic response would not be unfounded. The suggestion made by Schmitt, Agamben and others that the liberal constitutional state reveals its true authoritarian face in times of emergency strikes a chord of truth, especially when one considers Guantánamo Bay and the abuses associated with the current ‘War on Terror’ (Schmitt, Reference Schmitt and Seitzer1932/2003; Agamben, Reference Agamben and Attell2005). However, I share some of Tushnet’s apparent optimism that it is too easy to write off the resources of liberal democracy in this way. I would nevertheless put forward an alternative account of how abuses of emergency powers may be controlled in constitutional democracies.

In the argument developed below, I suggest that political controls can prove effective to some degree in reining in the excesses of emergency powers, despite their serious limitations, if they play out against the backdrop of a constitutional culture where (a) the potential for abuse of emergency powers is recognised and (b) excessive violations of rights rub sharply against the grain of the normative values embedded in this system. In other words, political processes work best when energised by a surrounding constitutional culture that has absorbed the ‘social learning’ of previous errors, to borrow Tushnet’s phrase. The presence or absence of this culture, and the degree to which it is internalised through the various layers of governance of constitutional democracies, will determine the extent to which the use of emergency powers is controllable in practice. In contrast, the political dynamics discussed by Tushnet are ultimately of less importance.

Admittedly, to have any real impact, this constitutional culture needs to be manifested through political processes: if it is confined to the back corridors of the legal process, or to abstract national or supranational standards, then its impact will be muted and easily disregarded in times of emergency. The political arena will be where the key issues are ultimately determined. However, if this constitutional culture does not find some expression outside political processes, then this also may not be sufficient: for the reasons already summarised, political resistance to the logic of emergency powers is often too easily marginalised in the temporary panic of a crisis. However, if this culture is manifested at both the legal and political level, the interplay between political and legal processes may ‘orient’ both towards a more questioning view of emergency powers. In addition, supranational frameworks may play a role, potentially opening up avenues for challenging and ultimately constraining the abuse of special powers. Taken together, as I argue in detail below, the trace elements of this constitutional culture embedded in various national and supranational processes may limit the ‘horizon of possibilities’ available to governments in times of emergency, and restrict what they can do with their emergency powers.

Therefore, a key flaw in Tushnet’s analysis is the excessively rigid dichotomy he draws between legal and political processes, with the former largely dismissed as being of marginal impact. This dichotomy is problematic for two reasons. First, legal processes may have more direct ‘bite’ on the use of emergency powers than his analysis admits, despite their serious limitations. Recent UK experience demonstrates this strongly, as does the experience of other European countries: legal processes on this side of the Atlantic have proven since September 11 to be more than a ‘thin reed’, even if it would be grossly exaggerating to describe them as a mighty oak. Secondly, legal and political processes are inextricably intertwined in contemporary constitutional democracies. Often indirectly, legal processes help shape political processes, and thereby have a greater impact on controlling the use of emergency powers than Tushnet allows for in his conceptual framework. Perhaps Tushnet’s customary intellectual valorisation of the political over the legal has this time caused him to underplay the potential impact of the latter. The shadow of legal controls plays an important role in shaping the constitutional culture and therefore the horizon of possibilities within which political actors operate. Ultimately, it is the interplay of legal, political and other processes and whether they combine to generate this constitutional culture that governs the ability of constitutional democracies to regulate the ‘state of exception’ opened up by the invocation of emergency powers.

The centrality of the political

Before expanding on these criticisms, it is worth reiterating the strengths of the paper, if only to subsequently draw out its possible blind spots. To begin with, Tushnet is largely correct in emphasising the prime importance of political processes as a key battleground in the struggle to control emergency powers. This argument will certainly strike a chord with many commentators in the UK. As Gearty has argued, winning the political battle for hearts and minds is essential if the ever-present potential for executive abuse of anti-terrorist legislation is to be reined in (Gearty, Reference Gearty2005). As I have argued elsewhere (O’Cinneide, Reference O’cinneide2004), if a sufficient political headwind can be generated behind a particular measure, then in most constitutional democracies it may be able to overcome most legal or institutional obstacles in its path. That is why the political battle to control the direction of the ship of state will always be important.

Tushnet also appears to be largely on the mark in his analysis of how different political actors may interact and influence each other. He makes perceptive points about how the generation of policy by the executive in times of emergency will often be contested internally as well as externally by political rivals,Footnote ³ and how the potentially fissiparous nature of coalition governmentFootnote ⁴ or the restiveness of backbenchers may have a substantial restraining effect.Footnote ⁵ He is also correct to highlight the potential usefulness of the role played by political checking mechanisms, such as the Joint Committee on Human Rights in the Westminster Parliament (Hiebert, Reference Hiebert2005).Footnote ⁶

The paper’s critique of the efficacy of legal processes has some merit as well. Tushnet is correct to emphasise the problem of delay in particular: the time lag inherent in judicial proceedings can be seen not alone in the snail’s pace of the Guantánamo litigation in the US, but also in the protracted litigation surrounding control orders in the UK.Footnote ⁷ Governments have also been often able to circumvent unfavourable judicial decisions where necessary: witness the introduction of control orders in the UK (see below) in the wake of the decision of the House of Lords in Secretary of State for the Home Department,Footnote ⁸ and the US government’s never-ending creativity in keeping Guantánamo Bay open. This is not a weakness of legal processes per se, just a confirmation that the trump card will usually rest in political hands.

Counterpoint: the limits of the political

However, while critiquing excessive reliance upon legal processes, Tushnet’s analysis lacks an equivalent examination of the serious limits of existing political processes. He shows that certain types of political interaction can have some sort of ameliorating impact on the use of emergency powers: however, he downplays the structural factors that mean that much of this ameliorative effect may be relatively minor and limited. He correctly argues that executive policy-making can be open to external political influences that can produce a restraining effect on the abuse of emergency powers. However, in emergency situations, there are ‘pull’ factors that usually have a considerable, and often overwhelming, impact on executive policy-making, steering it towards ever-greater attempts to secure more untrammelled power.

Executive policy is often driven by what appears to be a constant cycle of threat, fear and repression triggered again and again in states of emergency. A crisis generates fear, which in turns generates expectations of strong government action, which in turn generates demands by the executive for a free hand to respond forcefully to repress the threat (Loader and Walker, Reference Loader and Walker2007; Marks, Reference Marks2006). Governments feel compelled to be seen to act and to keep on acting in response to a crisis, with doing nothing not viewed as an acceptable option.Footnote ⁹

The executive is also often impelled to act by the demands of institutional actors largely absent from Tushnet’s account, such as the security services, the police and others, who push for new powers and whose security-driven logic can be difficult to gainsay (Gearty, Reference Gearty2005). Concerns about the possible use of weapons of mass destruction add a new dimension: the possible consequences of inaction may appear too grave to resist the attraction of emergency powers. These factors taken together can readily overwhelm the more ameliorative political influences discussed in the paper.

It should also be noted that the power of initiative in most constitutional democracies lies overwhelmingly with the executive, in particular in the heightened circumstances of an emergency.Footnote ¹⁰ In times of crisis, the executive will make an assessment of the nature of the threat or emergency in question, and what state response is required. As a result, the executive can claim a unique insight into the crisis and authoritative ‘expert’ status for the proposals it puts forward. These initial proposals may be subsequently modified as a result of the political dynamics that Tushnet describes. However, these political processes are often purely responsive in nature: incremental improvements may be made to the original government proposals, and the scope of emergency powers may be chipped away in places, but the general direction of response remains set by the executive. This also means that ‘rollback’ of emergency powers previously conferred upon the executive is exceptionally rare.

In the UK, since 9/11, the UK government has persuaded a policy of extending criminal sanctions for terrorism-related activity, while also attempting to extend its powers to detain and deport, often with the goal of driving certain non-national ‘troublemakers’ out of the state (Walker, Reference Walker2007). Despite court defeats and the rejection by the Commons and the Lords of various measures designed to advance this strategy, the government has repeatedly introduced new legislation to achieve these goals. Ministers have constantly sounded a drumbeat of concern about the terrorist threat, and toy publicly with introducing fresh and dramatic new anti-terrorist measures. By doing so, opponents are forced onto the back foot. Media debate is shaped by discussion of the pros and cons of the latest proposals. Ameliorative measures that have been introduced via the political process are often subsequently challenged afresh by the government.Footnote ¹¹ Often, mild modifications of government proposals designed to rein back the power of the executive have proved to lack any real impact (Phillipson, Reference Phillipson2007).Footnote ¹²

Other problems may exist that a clear-eyed examination of the political process would identify as troubling. The political classFootnote ¹³ may in general be disinclined to challenge any sweeping conferral of powers upon the executive, either because of ideological conviction of the necessity of these emergency measures or fear of the political consequences of resisting them. In emergency situations, the rhetoric of ‘security’ may sweep all before it, as Andrew Lynch notes in his response to Tushnet in this volume.Footnote ¹⁴ In the current situation, the rhetoric of the ‘War on Terror’, with its eschatological language of ‘clash of civilisations’, ‘good and evil’ and ‘life and death struggle’, has provided considerable impetus to the claims of overwhelming necessity and the sense of crisis (Gearty, Reference Gearty2007). It had an overwhelming impact in the immediate wake of September 11, and a new conception of ‘militant democracy’ has emerged strongly in public discourse (Sajo, Reference Sajo2004). Standing up to this particular political Zeitgeist will often be an unprofitable enterprise for members of the political classes. Other political actors may also be rendered inactive in times of emergency. The independent civil service will often be effectively gagged, despite Tushnet’s argument to the contrary: in the UK, the enthusiastic application of the Official Secrets Act by state prosecutors against civil servants who leak controversial documents acts as a strong (if not watertight) deterrent against politically inspired subversion. Media and popular responses may be conditioned by the darker currents of prejudice against minorities and politically unpopular groups inevitably stirred up in periods of emergency. Civil society may readily be marginalised.

Also, once emergency powers have been conferred upon the executive, political processes find it difficult to control or even to influence their use. As Tushnet himself has argued (Tushnet, Reference Tushnet2005), contemporary legislatures lack adequate scrutiny mechanisms to check the use in practice of emergency powers. Parliamentary committees can usually only engage in retrospective analysis of what has been done with emergency powers. Much of what goes on at the inter-governmental level, such as the use of ‘extraordinary rendition’ and other methods of subcontracting coercive interrogation to allied states with unpleasant security services, will rarely surface.Footnote ¹⁵ If and when such activities do come to light, political fact-finding mechanisms may struggle to undercover what actually happened.Footnote ¹⁶

Also, as Gross notes, comparative experience has shown the difficulty in maintaining a distinct separation between emergency powers and the ‘normal’ control apparatus of the state (Gross, Reference Gross2003). The executive may often be able to draw upon a deep reservoir of its ‘normal’ powers of detention, arrest and surveillance to achieve its aims. As the use of such powers does not involve special demands for a transfer of power via emergency processes to the executive, but merely involves the ongoing use of powers already conferred upon the executive, police and other security agencies, many of the political checking processes discussed by Tushnet will not kick in. The use of such permanent or ‘mainstream’ powers may again fly beneath the radar of political scrutiny, often only surfacing in instances of egregious abuse.

Sweeping anti-terrorist powers are now being permanently embedded in UK domestic law via the Anti-Terrorism Act 2000. Furthermore, since 2000, each new piece of anti-terrorism legislation is for the most part automatically added to the growing edifice of the UK’s permanent counter-terrorism code: while introduced under the flag of emergency, this legislation incrementally adds to the overall armoury of the executive. In addition, as Zedner has noted, anti-terrorist legislation has a recurring tendency to influence and be influenced by new forms of ‘preventative detention’ and other innovations in more ‘mainstream’ areas of law, such as criminal law (Zedner, Reference Zedner2007). This blurring of the boundaries between anti-terrorism powers and ‘normal’ law means that the UK government and security services have a wide range of powers to draw upon in any emergency situation. Any new powers added to this arsenal just complement an already powerful set of weaponry, the use of which often does not attract political controversy because it is seen as a normal and accepted deployment of the powers of the executive.Footnote ¹⁷ Admittedly, this process of ‘emergency’ legislation becoming permanently embedded in ‘ordinary’ law in various forms is perhaps more advanced in the UK than elsewhere. However, this trend can be observed in many constitutional democracies, and the political processes discussed by Tushnet are often not engaged where executives use their standard powers to achieve their emergency goals.

Fool’s gold: the questionable promise of political control

I do not deny for a moment that the political dynamics discussed by Tushnet can have an ameliorative effect in times of crisis. In addition, over time, they often operate to shift the political climate. This has arguably happened in recent times in the US, UK and elsewhere, where the rhetoric and conceptual presuppositions underpinning the ‘War on Terror’ are now be increasingly subject to political challenge (Gearty, Reference Gearty2007). However, this can be a slow process. All too often, a pattern of political response to emergency situations is repeated over and over, which I term ‘Korematsu syndrome’, after the much-criticised US Supreme Court decision upholding the political decision to detain Japanese-Americans after the Pearl Harbour attack in 1941 and the subsequent political and legal breast-beating that has accompanied the eventual recognition of the wrongs inherent in this use of emergency powers. In emergencies, due to the structural factors discussed above, political processes often crumple in the face of the crisis and prove inadequate to control abuse of emergency powers (as of course can legal processes, as the Korematsu decision itself shows). Eventually, the wrongs committed are acknowledged and public penance is done. However, the damage has been done, and the political processes discussed by Tushnet prove more useful in securing a mea culpa then in actually preventing abuses in the white heat of the emergency.

In his analysis of Korematsu, Tushnet viewed this process of retrospective lamentation in an optimistic light as a process of ‘social learning’ (Tushnet, Reference Tushnet2003): lessons are learnt, and in future mistakes can be avoided via the take-up of these lessons by the political process. However, there is little evidence of political processes applying these lessons in a sustained manner at the moment of crisis. For example, take the Northern Ireland experience, another case of Korematsu syndrome. The introduction, use and abuse of emergency powers both in Northern Ireland itself and in Britain in response to the mainland IRA bombing campaign attracted little sustained opposition within the mainstream of British political and media opinion. Subsequently, there has been widespread political recognition that abuses occurred in the Northern Irish context.Footnote ¹⁸ However, in the wake of 9/11, despite political rhetoric about learning from the Northern Irish experience, there has been slippage towards periodic heavy-handed use of emergency powers. Some ‘social learning’ has occurred: the political debate in the UK has been arguably marked by a much greater appreciation of the perils of targeting particular communities and alienating groups than was the case in the 1970s. However, the structural limits to the operation of the political process discussed above mean that this ‘social learning’ only goes so far.

Also, throughout many constitutional democracies, the workings of political processes since 9/11 have a similar mixed record. Professor Tushnet’s arguments arguably make too much of the unique instance of the Arar Commission in Canada, and downplay the positively supine performance of political processes in the US, UK and elsewhere in the wake of 9/11. Doubtless, there will be considerable repentance (and hopefully some constructive ‘social learning’) in years to come over Guantánamo Bay, extraordinary rendition and other contemporary abuses: however, political processes have signally failed to avert these serious human rights violations. The Korematsu cycle of errors made in haste, followed by extensive repentance in leisure, keeps on recurring.

These inherent limitations of the political processes described by Professor Tushnet explain why I believe that hopes of maintaining quarantine around emergency powers by the use of political tools alone, to prevent their abuse and seepage into the mainstream of executive power, is often a quixotic enterprise.Footnote ¹⁹ Political controls suffer from their own inherent deficiencies and limits in times of emergency, and may simply not be up to the job of minimising rights abuses in such periods of crisis. This is not to dismiss Professor Tushnet’s emphasis on the centrality of the political, which I share: it is simply to note that serious structural impediments exist to the effective functioning of the political process in emergency conditions. In paying due reverence to the political and avoiding the excessive praise of alternative deities, it is important that we also recognise the hollowness of the idol where appropriate.

An alternative: constitutional culture

All of the foregoing analysis may suggest that I am engaged in a solely deconstructive exercise, challenging the expectations that Professor Tushnet rests in the political process, just as he has done for many of the fond hopes vested by liberal constitutionalists in the legal processes. However, I think an alternative account of how emergency powers may be controlled is possible. Political processes in themselves suffer from severe limitations as control factors on the use of emergency powers. So too do legal processes, a point worth making repeatedly. However, where a culture exists that views emergency powers as problematic and abuses as transgressions of the fundamental norms of society, then this can ‘orient’ both political and legal processes towards a more questioning view of emergency powers. Such a culture tends to be the most effective carrier of the ‘social learning’ brought about by previous abuses: if emergency powers are used in such a way as to rekindle memories of previous abuses, or which rub against the grain of the values the constitutional culture treats as key, then the sense of ‘wrongness’ that is triggered can energise both political and legal opposition.

From a comparative perspective, I would argue that it is the presence and strength of this constitutional culture of engrained scepticism about the use and potential abuse of emergency powers that appears to be the major determining factor in whether their use is effectively controlled. (It is ‘constitutional’ in the sense that it embodies norms that are conceptualised as integral to a society’s sense of self, rather than in the narrow sense of being written down in a constitutional text or given obeisance in case-law.) For example, as Schepple has noted, the European reaction in general since 9/11 has been notably more cautious about the deployment of emergency measures than the US reaction (Schepple, Reference Schepple2004).Footnote ²⁰ The historical memory of abuses of emergency powers and the normative embedding of human rights values in their often highly juridified constitutional structures has produced a culture of strong scepticism about emergency measures. This is particularly noticeable in the case-law of the German courts since 9/11,Footnote ²¹ but also can be seen in the political reaction to the devastating Atocha train bombs in Madrid in 2003 (the worst atrocity since 9/11 in a Western state). It could also be argued that the climate of increasing political and legal opposition to the use of emergency powers that exists now in the UK, which notably contrasts with the much more accepting climate that persisted during the years of IRA terrorism, is the product of a shift in recent years towards this type of emergency-sceptic, rights-friendly constitutional culture.

How is such a constitutional culture generated? Relying on legal processes alone will not be enough, due to their inherent limits and the ability of political processes to circumvent them: indeed, if constitutional norms are left marooned within legal processes alone, they will often ultimately lack real impact. Healthy political processes can arguably embody and give effect to constitutional values without outside prodding, but as discussed above our contemporary political dynamics are far from healthy. However, I would argue that interplay between political and legal processes may result in a mutually reinforcing ‘orientation’ towards such a constitutional culture. In addition, supranational frameworks may play a role, potentially problematising the use of emergency powers in a way that opens up avenues for challenging and ultimately constraining their use.

The ‘dampening’ effect of law in times of emergency

Turning first to the potential of the interplay between political and legal processes, Professor Tushnet is much too quick to dismiss the potential impact of legal processes in exposing abuse in the application of emergency powers, and too eager to establish a political/legal dichotomy that does not exist in practice: legal and political processes are inextricably intertwined and often mutually influencing. Campbell and Connolly, in their thought-provoking analysis of the operation of anti-terrorism powers in Northern Ireland and elsewhere, suggest that law can play a ‘dampening’ role on the often repressive application of emergency measures (Campbell and Connolly, Reference Campbell and Connolly2006, 942–45). Legal processes may often be ultimately controlled by prevailing ideologies, or have limited impact. However, the aspirations inherent in legal systems to protect rights, ensure fair procedures and uphold certain normative values mean that some space may open up within these systems to challenge the abuse of state powers, even in times of crisis and repression. These legal avenues can provide an avenue of opportunity for mixed political/legal activism (via test cases, NGO interventions and similar strategies): this in turn can throw up legal obstacles to the abuse of emergency powers, or feed back into political challenges to the use of such powers.

Therefore, as Campbell and Connolly suggest, the ‘relatively autonomous’ framework of a legal system can both ‘dampen’ abuses of emergency powers and also have an impact on political debates about their use. Of course, the extent to which legal processes are capable of playing such a ‘dampening’ role may be limited, and also may vary from country to country. The historical record is mixed, even if it not as poor as Tushnet suggests.Footnote ²² The recent US experience could be seen as showing that legal processes can have some impact on the use of emergency powers, but also shows that this may ultimately prove to be relatively limited in scope: the Supreme Court decisions in Rasul v. Bush Footnote ²³ and Hamdi v. Rumsfield Footnote ²⁴ have had some remedial value but have not fundamentally altered the terms of engagement of the ‘War On Terror’ within the United States. The recent Canadian experience may be similar, as certainly is the historical experience of the UK both during the two World Wars and during the worst years of the Northern Irish crisis. However, the recent UK experience is very different. New constitutional mechanisms recently introduced as part of the New Labour constitutional reform agenda have come into play this time round. In particular, the Human Rights Act 1998 (HRA), which incorporates the European Convention on Human Rights (ECHR) into UK law, has made the courts a battleground where the legitimacy of counter-terrorist powers has come under sustained (if not always successful) challenge.

This is all the more striking, given that the record of the UK courts until recently could serve as confirmation of Professor Tushnet’s low opinion of the effectiveness of legal processes.Footnote ²⁵ In line with the ‘political constitution’ of the UK, the validity or otherwise of emergency measures has historically been seen as a matter solely for Parliamentary debate and determination. This was confirmed by the famous decision of the Law Lords in Liversidge v. Anderson.Footnote ²⁶ Post-9/11, a similar approach appeared to be inevitable. In Secretary of State for the Home Department v. Rehman,Footnote ²⁷ the Law Lords adopted a very deferential stance towards the executive’s views on what constituted a threat to national security, with Lord Hoffmann adding an extraordinary postscript to his judgement explicitly linking the need for this deference to the events of 9/11.Footnote ²⁸ However, the decision by the Law Lords in A v Secretary of State for the Home Department Footnote ²⁹ marked a change in direction. As discussed above, this judgement found the use of a special detention power to hold suspects in prison without trial to be incompatible with the European Convention on Human Rights. While the judgement itself changed little, especially for the individuals caught up in the government’s detention/control order/deportation strategy, it was remarkable for the rejection by eight of the nine Law Lords of the appropriateness of deferring in assessing the proportionality of measures taken under the cloak of national security.Footnote ³⁰

As noted above, the UK government has to an extent been able to circumvent the impact if this decision by the introduction of control orders, which permit substantial restraints to be placed on individual liberty via a civil process involving a lower standard of proof than is applied in criminal proceedings (Walker, Reference Walker2007). Subsequent decisions by senior courts have not attracted the same degree of approval from civil liberties activists.Footnote ³¹ However, the A decision did open the door for lower courts to apply a stricter proportionality analysis in other counter-terrorism cases.Footnote ³² The use of control orders and attempts to deport terror suspects have become a legal and political battlefield, miring the government in a morass of controversy and litigation. Several court decisions have raised real concerns about the scope and extent of some of control orders, and their compatibility with the right to personal liberty guaranteed in Article 5(1) of the ECHR.Footnote ³³ The government’s use of deportation powers has also run into some difficult legal waters.Footnote ³⁴ Many of these decisions have not resulted in tangible gains for defendants, and several have resulted in government victories. However, taken together, these cases have caused severe disruption to some of the more controversial elements of the UK government’s anti-terrorism strategy, casting the continuation of the control orders regime into serious doubt and resulting in angry attacks by ministers on that hitherto little-noted beast, the liberal British judiciary.Footnote ³⁵

Therefore, the recent UK experience has been that legal processes in themselves can have some ‘bite’ on the exercise of emergency controls, albeit limited. However, more significantly, this legal controversy has given a considerable impetus to wider political debates about the use of anti-terrorism powers. To some degree, the legal process has served to embolden political opposition to the legislation, by confounding the widely held assumption that anti-terrorism measures were untouchable in the current UK political climate. Political activism and these recent judicial decisions have mutually reinforced a wider feeling of unease about the emergency measures being adopted.Footnote ³⁶ While this mixed political/legal activism has only generated some shifts in government policy, it is striking how the political debate has changed since the immediate aftermath of 9/11. The traditional constitutional culture of deference to the executive’s risk assessment has begun to shift.

Supranational standards

It should also be noted that the way in which the UK is embedded in various layers of European governance has also had a considerable impact. Its membership of the European Union has had little impact in itself, with EU processes primarily featuring since 9/11 as mechanisms for enhancing state co-operation on anti-terrorist measures. However, the European Convention on Human Rights and the case-law of the European Court of Human Rights has had a considerable impact on the use of emergency powers in the UK. The European Court of Human Rights has the advantage of being abstracted from the domestic situation in the Convention’s signatory states, which has historically given it a degree of insulation from prevailing political pressures. Its case-law on the use of emergency powers is mixed: it has tended to show considerable deference to states asserting the existence of states of emergency,Footnote ³⁷ but has been more assertive in assessing the proportionality of what states have done, an approach now reflected in the Belmarsh decision.Footnote ³⁸ The Strasbourg court has also held fast thus far to its jurisprudence on the right to life and freedom from torture and inhuman and degrading treatment, meaning that decisions such as Chalal v. UK Footnote ³⁹ and Ireland v. UK Footnote ⁴⁰ still substantially constrain what the UK government is capable of doing while remaining within the Convention. The UK government can try to work around these limitations, but it remains hemmed in to some extent, both by the Convention and by the HRA, which incorporates those standards internally. The same applies to the other European states.

This umbilical cord to European standards therefore continues to act as a significant ‘dampening’ factor on the counter-terrorism cycle.Footnote ⁴¹ Notably, much of this restraining effect stems from legal processes: while compliance with the Convention is ultimately rooted in political considerations, thereby again showing the centrality in the final analysis of political processes, the ongoing impact of the ECHR on the day-to-day implementation of emergency powers stems largely from its legal dimension. These legal constraints limit the horizon of possibilities practicably available to national governments in times of emergency. However, they also have an indirect political impact: with other international human rights standards, the normative values embedded in the ECHR help shape at both national and European levels a constitutional climate where the abuse of emergency powers becomes problematised. This manner in which these supranational standards operate at both the legal and political level is missing from Tushnet’s paper. Perhaps the absence of strong supranational mechanisms in the North American context may go some way in explaining the differing European experience since 9/11: it certainly is a dimension that is worthy of close examination.