Keeping Control of Terrorists Without Losing Control of Constitutionalism

Abstract

The anticipatory risk of mass terrorism casualties or even the nightmare of the use of weapons of mass destruction conduces towards interventions which are preemptive or preventative. The threat of terrorism to life and liberty cannot be addressed simply by ex post facto rectification for the sake of justice. An inevitable consequence of this risk dynamic will be an intelligence-led approach, that is, governmental net-casting for information and for potential assailants on a wide and prescient scale. Several measures in U.K. law could be considered as test cases of counter-terrorism control measures. Probably the most appropriate are the eponymous control orders under the Prevention of Terrorism Act 2005. The system imposed by the Act encompasses both operative dynamics: the imperative to respond to anticipatory risk and the need to extend action to the "neighbor" terrorist. Foremost in the inquiry will be the following questions: what circumstances gave rise to the policy of control orders; what are the main elements of the policy and how is it implemented; is it possible to maintain constitutionalism when dealing with a non-criminal justice mechanism of this kind; and, what lessons can be derived for future policy?