Author: Webb, Sheridan
Published in National Security Journal, 09 April 2021
There are two noteworthy points relating to legislative change during this period: Firstly, in response to the Christchurch attack, government agreed to a CT Strategy on 10 September 2019. The strategy specifically lists “reviewing and strengthening CT legislation” as a priority of the work programme.113 This review was already underway by the time the Control Orders Bill was introduced in October 2019.114 Foreshadowed within the Bill’s Regulatory Impact Statement are “potential new and altered terrorism-related offences in the TSA”.115
Secondly, the Control Orders Act implemented a civil regime that covers returning FTF who are unlikely to satisfy the evidentiary requirements under the TSA or Crimes Act. The Bill obtained royal assent on 19 December 2019, having passed with 63 votes to 56. It had been criticised as being singly responsive to the possible return of Taylor, however Andrew Little, the Minister of Justice, contended that a review of terrorism legislation had begun in September 2018.116 The extent of this ‘review’ is unclear and there is no evidence to suggest that the focus was wider than on the specific return of FTFs. Golriz Ghahraman asserted, “there’s no argument that this was a law that was being drafted and now by chance it will have application to these people.” Paul Buchanan said “they’ve been working on this law reform for a while, but they’ve been taking their time to get the wording right.”117 It is therefore difficult to characterise the Control Orders Act as proactive legislation, given that it responds to existing obligations, an ongoing situation in the Middle East and a high-risk policy problem inherited from the previous government. Since then, the government had been forced to significantly adjust to meet the needs of COVID-19 and having secured an outright majority in the October 2020 election, the Labour Government is now faced with responding to the findings and recommendations from the Inquiry.
The chronology of events outlined above bring to light five key trends. Firstly, a clear ‘trigger and response’ relationship exists between international obligations and the development of domestic law relating to terrorism. With the exception of the International Terrorism (Emergency Powers) Act , every other piece of legislation has its roots in UNSC resolutions or conventions. The Control Orders Act could appear distinct given there was a delay between the issuance of obligations and the implementation of the Act. However, this could be little more than the usual lethargy. The Control Orders Act achieves compliance with UNSC resolution 1373 through preventing the safe-havening of terrorists who may otherwise not satisfy the evidentiary requirements of TSA offences. Therefore, no terrorism legislation has been proactively developed in 32 years, unless required in some way by the UN. In respect of the definition of terrorism, the 2005 review indicated that Government was waiting until the UN had negotiated a universal definition before amending the TSA. That outcome seems increasingly unlikely today, and as time has pressed on, the TSA’s definition of terrorism carries enhanced