There are numerous ways that Parliament can engage in counter-terrorism review. Parliamentary committees, such as the Joint Committee on Human Rights, the Home Affairs Select Committee, and the Joint Committee on the National Security Strategy, can conduct inquiries into counter-terrorism policies and practices and produce reports on various features of the UK’s anti-terrorism laws. MPs and Lords can ask questions of Government Ministers in Parliament, requesting information on specific aspects of counter-terrorism. Parliament scrutinises new anti-terrorism legislation. One additional route of parliamentary counter-terrorism review is the Sunset Clause.
Sunset clauses are legal provisions which provide for the expiry of a law at a future point in time. They can take many forms: they can simply list a date on which the legislation, or a part of the legislation will cease to have effect. They can automatically trigger a review of legislation by a particular body, such as the Privy Council. Or they can provide for legislation to lapse on a certain date unless it is continued in force. These are the most frequently used types of sunset clauses in anti-terrorism laws. The typical process for renewing legislation subject to this type of sunset clause is for the Secretary of State to lay a statutory order before Parliament. There are two procedures available for the order to take effect: the affirmative resolution procedure, and the negative resolution procedure. Under the negative procedure, a statutory instrument automatically becomes law after a specific period of time unless there is an objection from either the House of Commons or the House of Lords. Under the affirmative procedure, both Houses of Parliament must formally approve the statutory instrument for it to become law.
It is these types of sunset clauses – subject to the affirmative procedure – that engage Parliament in counter-terrorism review. This is because to formally approve a statutory order, Parliament must debate the relevant legislation. It must make a decision as to whether to vote in favour of renewing the legislation for the specified period of time, or to allow it to lapse.
In practice, Parliament’s review of legislation subject to a sunset clause does not always meet the standard of ‘counter-terrorism review’ proposed by this project – the ‘retrospective consideration of counter-terrorism laws and measures to assess their lawfulness, propriety, impacts, effectiveness and appropriateness by reference to core principles of democracy, human rights and the rule of law’.
This is because most renewal debates have been poorly attended. In the 2003 debate in the House of Lords on whether to renew the Part 4 powers of the Anti-Terrorism, Crime and Security Act 2001 – the controversial measures which allowed for the indefinite detention of non-national terrorist suspects – just four Lords spoke. This included the Minister who had introduced the renewal order. Only 13 MPs attended the first debate in 2006 on whether to renew the Prevention of Terrorism Act 2005 – the legislation which established the control order regime.
The time allotted for debates on sunset clauses is also very short, often limited by parliamentary procedure to only an hour and a half. This has not always been a problem for Parliament. The House of Commons Third Delegated Legislation Committee, which was entrusted to consider whether the Terrorism Prevention and Investigation Measures Act 2011 should be renewed for a further five years, debated the measures for just 32 minutes.
One of the main issues affecting the length of renewal debates is that Parliament is often not provided sufficient information on which to base an informed decision as to whether to renew legislation or allow it to lapse. For example, in the 2009 debate on whether to renew the extended period of pre-charge detention in the Terrorism Act 2006, Baroness Neville-Jones stated: ‘I do not feel able to vote for or to support a change with real potential implications for security on the basis of today’s short and incomplete debate, uninformed about the current terrorist threat and the security situation generally.’ During the 2016 debate in the Third Delegated Legislation Committee on whether to renew the TPIMs regime, the SNP’s Richard Arkless MP reiterated this point: ‘I was expecting – perhaps naively, as a new Member – to be taken though how TPIMs have worked over the past five years and how effective they have been in achieving the objective of fighting terrorism. Unfortunately we have not heard that.’
Sunset clauses offer Parliament a rare opportunity to engage in counter-terrorism review – one that it has to date not made significant use of. As part of this project we will be evaluating Parliament’s participation in counter-terrorism review, with a view to proposing reforms that will ensure that state counter-terrorism practices – including its anti-terrorism legislation – are effectively held to account.