Andrew Neal – The Entropy of Dangerousness

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Event Date: 21 February 2011
The River Room
King’s College London, Strand Campus
London WC2R 2LS

Problematising Danger

ESRC Seminar Series- Contemporary Biopolitical Security

 

Co-sponsored by the Biopolitics of Security Network,
and the Emerging Securities Research Unit @ Keele University


Andrew Neal
University of Edinburgh

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talk:

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My current work:

  • analysing counter-terrorism lawmaking in Parliament
  • from publication of Lord Lloyd’s ‘Inquiry into terrorism legislation’ in 1996 to present day.
  • by taking a longer view, trying to look beyond the core themes of security debates in the last decade:
    1. Temporal moment/rupture
    2. Sovereign exceptionalism/executive decisionism
    3. Binaries (e.g. norm/exception, before/after)
  • Questions: 
    • What happens to exceptionalism and emergencies over time?
    • What is their lifespan?
    • What does security look like from a lawmaking perspective, rather than an ‘exception to law’ perspective?
    • What does security look like from a parliamentary perspective, rather than a sovereign/executive perspective only?
    • What does security look like from a parliamentary perspective, rather than a governmentality perspective?
    • What does normalisation look like and how does it work?

Parliament occupies a very interesting position

  • in some ways an arcane power
  • very limited/weak in policy terms
  • very limited/weak in relation to ever expanding executive
  • very limited/weak in relation to ever expanding technologies of governmentality beyond the traditional institutions of government
  • following Ben Golder and Peter Fitzpatrick’s recent rereading of Foucault in relation to law
    • ‘expulsion thesis’ of established interpretations: 
      • governmentality supplants sovereign and juridical powers of law
      • the power of the law is repressive, limited, negative, monotonous, the pure statement of power (History of Sexuality)
      • corresponds to experience of parliamentary counter-terrorism lawmaking
      • repetitive, symbolic, monotonous, repressive, written
    • but, law presents an excess, it opens up unexpected possibilities, it is constitutive of powers of governmentality, it exceeds the intentions of the those who use it, it is ‘dangerous’ 
      • corresponds to problem of CT law for parliamentarians
      • immense political and social pressure to make new laws in response to security events
      • but the big problem for parliamentarians is that they don’t know the consequences of their actions
      • how will the laws be used?
      • Will new police powers be misused?
      • Will new definitions of terrorism bring protestors or liberation movements into their remit?
      • Will the mistakes of the past be repeated?
      • The history of CT legislation shows that despite executive assurances, all the fears of parliamentarians have come to pass.

Danger’

  • Not a commonly found term in the parliamentary debates
  • Actually not a great discussion of the nature of the threat, dangerous individuals, dangerous forms of life 
    • Much of this is assumed as obvious in the wake of events like 9/11 and 7/7
    • Much of this discussion depends on expert knowledge from the security establishment, since parliamentarians have little of way of contesting this 
      • (lack of symbolic capital on security due to lack of access to intelligence and constitutional convention of deference to executive on security)
    • What are the ‘dangers’ for parliamentarians?
      • The dangers of the laws they are being asked to give assent to: 
        • What will their effect be?
        • Danger of negative/counter-productive consequences of certain powers: 
          1. recruiting sergeant argument
          2. alienates community that is most important source of intelligence
          • E.g. extending pre-charge detention presents the danger of making Britain less safe in two ways (David Davis as shadow home secretary in 2008):
      • Dangers of repeating the mistakes of the past: 
        • Some Northern Ireland MPs and MPs with constituents who were ‘suspect’ communities 
          • Counter-terrorism laws used to terrorise communities
          • Some argue that they were needed, others argue that they were not effective
          • Peace came from political solution and de-escalation of these powers
      • Future dangers of threats
        • But once away from the immediate focus in the wake of terrorist attacks, these future dangers become hypothetical
        • Entropy of dangerousness – when time passes from spectacular event, political effect of emergency becomes much weaker
        • Hypothetical discourse of danger very divisive and highly contested in parliament, not persuasive
          • Counter-Terrorism Bill 2008
          • E.g. discussion of powers needed for three 9/11s in future – not credible
          • Impossible to quantify what powers might be needed, impossible to quantify any lack in current powers
          • Some security professionals asking for more powers (some police), others happy with current powers (Crown Prosecution Service)
      • Danger to constitution of Britain itself 
        • Threat to magna carter, British liberties, relationship of individual to the state, of ‘giving the terrorists a victory’

Interesting findings:

  • in the wake of terrorist attacks, parliament has a long history of legislating in a knee-jerk way (rushed, reactive, repetitious)
  • laws often proved to be problematic/unworkable
    • e.g. 1998 post-Omagh legislation (Criminal Justice (Terrorism and Security) Act 1998)
    • widely recognised in reflexive discourses of parliamentarians and commentators
      • ‘this is what we do, let’s not do it this time’
    • exceptional events promp exceptional response (almost unfailingly)
      • consensus to act, consensus on threat
    • but also, strong parliamentary principle
      • ‘exceptional laws require exceptional scrutiny’ 
        • as soon as exceptionality enters the legislative discourse, parliament demands special scrutiny, limits, restrictions 
          • e.g. sunset clauses
          • annual review
          • special independent reviewer (Lord Carlile until recently, but a long tradition)
          • annual debate/parliamentary renewal
        • can be very critical of these 
          • 1974 Prevention of Terrorism Act meant to be temporary for six months, but was debated and renewed every year for 25 years.
          • One MP – ‘a sham’
        • special scrutiny/oversight measures didn’t stop legislative excess, but did win significant concessions.
        • Clive Walker – given weakness of parliament in British constitution, least we can hope for.
    • But, when the exception/emergency has faded, there are also periods/acts of normalisation 
      • Terrorism Act 2000 
        • In context of peace in N. Ireland
        • Consolidating/modernising previous laws
      • Interesting parallels with current review of CT laws/powers by new government
      • When the new laws are not introduced as exceptional/emergency laws, the parliamentary response is much weaker. 
        • When the aim is normalisation, not exceptionalism, parliament does not dig its heels in for exceptional scrutiny.
        • Allows what was previously exceptional to become normalized
          • Some reductions in powers, but also making permanent of others.
          • Removal of scrutiny mechanisms.
          • True in 2000 and 2011.
          • Terrorism Act 2000 broad and sweeping, still causing problems today (e.g. stop and search)
      • Arguably, normalisation is more ‘dangerous’ than exceptionalism, in terms of civil liberties, change to constitution of UK, in terms of normalizing assumptions of dangerousness of ‘suspect’ groups (including protestors, e.g.)

 

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