Domestic Counter-Terrorism in a Global World

Post-9/11 Institutional Structures and Cultures in Canada and the United Kingdom

Daniel Alati

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781134850389
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Although both Canada and the United Kingdom had experienced terrorism prior to the attacks of 9/11 and already had in place extensive provisions to deal with terrorism, the events of that day led to the enactment of new and expansive counter-terrorism legislation being enacted in both jurisdictions. This book explores these changes to counter-terrorism laws and policies in the UK and Canada in order to demonstrate that despite the force of international legal instruments, including the heavily scrutinized UN Security Council Resolution 1373, the evolution of counter-terrorism policies in different jurisdictions is best analyzed and understood as a product of local institutional structures and cultures.

The book compares legal and political structures and cultures within Canada and the United Kingdom. It analyses variations in the evolution post-9/11 counter-terrorism measures in the two jurisdictions and explores the domestic reasons for them. While focus is primarily geared towards security certificates and bail with recognizance/investigative hearings in Canada, and detention without trial, control orders and TPIMs in the UK, the use of secret evidence in the wider national security context (terrorist listing, civil litigation, criminal prosecutions, etc.) is also discussed. The book reveals how domestic structures and cultures, including the legal system, the relative stability of government, local human rights culture, and geopolitical relationships all influence how counter-terrorism measures evolve. In this sense, the book utilizes a methodology that is both comparative and interdisciplinary by engaging in legal, political, historical and cultural analyses.

This book will be particularly useful for target audiences in the fields of comparative law and criminal justice, counter-terrorism law, human rights law, and international relations and politics.

1 Introduction

Although both Canada and the United Kingdom (UK) had experienced terrorism prior to the attacks that occurred in the United States (US) on 11 September 2001, the events of that day ‘produced a horrible natural experiment that allows us to compare how international institutions and different countries responded … All countries responded in a manner that reflected their own particular histories and legal, political and social cultures’.¹ Many authors have argued that the most significant post-9/11 response from an international institution was the United Nations (UN) Security Council Resolution 1373,² which led to the creation of a Counter-Terrorism Committee (CTC) to monitor the implementation of a 90-day deadline for states to report on measures they had implemented in accordance with the Resolution.³ Despite the fact that both Canada and the UK already had in place various criminal law provisions to deal with terrorism, both countries responded swiftly and comprehensively to Resolution 1373, treating the 90-day reporting requirement as a ‘virtual deadline for the enactment of new legislation’.⁴ Nonetheless, commentators such as Roach have argued that the Canadian Anti-Terrorism Act (ATA) and the UK’s Anti-Terrorism, Crime and Security Act (ATCSA) are legislative responses that reflect the histories and legal, political and social cultures of the countries in which they were enacted. This book acknowledges the force of international legal instruments such as UN Security Council Resolution 1373, but nonetheless argues that the evolution of counter-terrorism policies in different jurisdictions is best analysed and understood as a product of the institutional structures and cultures present in those jurisdictions. Put simply, while Resolution 1373 undoubtedly had an impact on how and when the ATA and ATCSA were implemented, it is the domestic legal and political structures and cultures in the two jurisdictions that have had the greatest impact on how counter-terrorism measures have since evolved.

In making this argument, this book engages in comparative analyses of legal and political structures and cultures within Canada and the UK, in order to discern how they have affected the evolution of domestic responses to terrorism. This comparative analysis allows for useful findings pertaining to variations in the evolution of counter-terrorism policies in the two jurisdictions and explores the domestic reasons for them. Important differences between the legal and political structures present in Canada and the UK that make the jurisdictions particularly amenable to this kind of analysis are discussed later in this chapter. Similarly, this chapter contains justifications for the selection of jurisdictions, measures and focus on Resolution 1373. The methodology section lays out two contrasting views on the purposes of comparison – universalism and cultural comparativism – in order to explain why this book chooses to engage in analyses typical of cultural comparativism. Section 1.3 below uses academic literature to define and operationalize the important concepts of legal and political structures and cultures. The chapter concludes by providing a brief overview of all subsequent chapters.

1.1 Selection of jurisdictions, measures and Resolution 1373

1.1.1 Selection of jurisdictions

While there are many similarities and differences between Canada and the UK that make the jurisdictions particularly amenable to comparative analyses, there are unique nuances in the structures and cultures of the two countries that make for especially useful comparison. As noted, both countries responded swiftly to UN Security Council Resolution 1373 with sprawling and comprehensive legislation, despite the fact that both countries had provisions pertaining to terrorism on the books.⁵ Similarly, both jurisdictions have been criticized in the years following 9/11 for their reliance on immigration law in the fight against terrorism.⁶ Both jurisdictions operate under the common law and within Westminster-based parliamentary systems. That said, the key differences between the two jurisdictions can be categorized into four areas: legal structure, including rights adjudication systems in the two jurisdictions; political structure, including government type and mechanisms for parliamentary review; legal culture, including ideas among the judiciary pertaining to the appropriate level of deference in national security cases; and finally, political culture, including societal attitudes towards human rights in each jurisdiction, and relationships with powerful states such as the US. Each of these areas of difference is the focus of subsequent chapters, and each difference contains nuances that are connected to the overall argument of this book.

Comparisons of Canada and the UK’s legal structure focus on the operation of the Human Rights Act 1998⁷ (HRA) in the UK, which gives effect to the European Convention on Human Rights⁸ (ECHR), and on the Canadian Charter of Rights and Freedoms in Canada.⁹ The Charter is a constitutionally entrenched Bill of Rights document that gives Canadian courts a formal power to strike down legislation, adjudicated at the highest level by the Supreme Court of Canada. To contrast, the HRA allows resort to the European Court of Human Rights (ECtHR) once adjudication in the domestic courts has been exhausted, with UK courts required to ‘take into account’ ECtHR jurisprudence.¹⁰ While Kavanagh has argued that the powers of the courts under these two systems ‘are not dissimilar’,¹¹ others argue that the UK ‘form of legislation for human rights is not as strong as the Canadian model’.¹² This difference in legal structure leads to two questions about its potential impact on the evolution of counter-terrorism measures: 1) How, and to what extent, are domestic legal decisions on counter-terrorism influenced by the structure of the rights adjudication systems in each jurisdiction? and; 2) How, and to what extent, do domestic legal structures allow for international legal instruments to impact domestic legal decisions on counter-terrorism?

Analyses of the political structure of Canada and the UK focus on the government types¹³ of the two countries over the last decade, and the systems for parliamentary review and oversight of counter-terrorism measures present in the two jurisdictions. ‘Government type’ is the term used by Conley to distinguish between minority (or coalition) and majority governments in his analysis of how institutional structures and governing contexts intersect to account for variation in legislative outcomes. Canada and the UK have both had experience of minority (or coalition) governments in the years since 9/11, albeit at different times, and there is much academic debate about how legislation may evolve differently under minority (or coalition) or majority governments.¹⁴ This leads to the following question for analysis: Has the existence of minority (or coalition) governments had an impact on the evolution of domestic counter-terrorism measures in the two jurisdictions? Moreover, a significant difference in the UK and Canada’s political structure is the comparative abundance of parliamentary oversight and review of counter-terrorism provisions in the UK and the glaring lack of these review mechanisms in Canada.¹⁵ This leads to the following question for analysis: How, and to what extent, have systems for parliamentary review and oversight of counter-terrorism measures had an impact on the evolution of domestic counter-terrorism measures in the two jurisdictions? Both of these questions contribute to analyses of how, and to what extent, differences in domestic political structure have an impact on the evolution of counter-terrorism measures in the two jurisdictions.

Analyses of the differences in legal culture between the two countries will focus on what judicial decisions in national security cases tell us about the judiciary’s role in these cases. This includes analyses of what judges in each country believe to be the appropriate levels of deference to the executive, and analyses of whether judicial decisions on national security provide evid...