Introduction
On the 18 September 2007 a resident of the UK was refused permission to attend college to study for a qualification in biology, on the grounds that it could potentially enable him to handle substances which could be used in a terrorist attack. This ability to deny people access to education formed part of the provisions of a ‘control order’, a legal device which emerged out of the context of the war on terror, and which provides the UK's Home Secretary with a wide ranging control over the lives of certain individuals.
While control orders are in many senses an exceptional legal procedure, they nevertheless appear a typical example of ‘securitisation’, a by now familiar concept which describes both the discursive construction of exceptional threats, and how this construction creates a type of politics which permits actors to break rules or restraints which normally apply.Footnote 1 In this case, the threat of terrorism which these individuals are deemed to embody overrides certain rights such as liberty, or the right to a fair trial.
However, on closer inspection, two problems with this account emerge. The first is that, while the rights of those detained have in many ways been violated, control orders were nevertheless conceived as a more moderate replacement for a previous policy of outright detention without charge, which had been found in contravention of Britain's human rights obligations. Control orders therefore do not represent the absolute triumph of security concerns over rights, but rather a kind of uneasy compromise between them. The second problem is that of the 45 people detained under the act since 2005, seven managed to abscond from their order. The policy, in other words, fails to provide the level of security one would expect for such an exceptional situation.
How did such a paradoxical security tool, which pretends to control the educational future of a suspect, yet nevertheless allows them relatively easy escape, develop? Securitisation theory would prompt an initial focus on the process of (discursive) construction of the terrorism threat. However, whilst this clearly provided grounds for the production of anti-terror policy in general, there is nothing about that threat which requires control orders in particular to emerge: they represent just one possible rule breaking procedure out of many. This leads to a question. Even if we accept that securitisation allows rules to be broken, which rules are then chosen, and why?
The aim of the present article is to answer this question, and thus provide securitisation theory with conceptual means for connecting securitisations to concrete outcomes. It is structured as follows. Part one gives a brief overview of securitisation literature, placing the focus on the effects of successful securitisations, an area which was very loosely theorised in the initial framework and has remained understudied since. This section explores the types of rules securitisation can be used to break, and in so doing offers a fresh angle on existing debates about the role of actor and audience within the theory. Part two returns to the example of control orders, in order to examine in more detail how a process of rule breaking occurs. I show how the eventual rules which were broken depended firstly on the disaggregation of the particular rules involved (such as the right to liberty), and secondly on a three way negotiation between securitising actor and two audiences. This process served to channel the force of the politics of threat by weighing both the value of rules against the value of security, and the value of different rules against each other. The outcome, rather than a simple overriding of all rules, was that securitisation moves towards the weakest rule in an overall rule structure: the breaking point.
The effects of securitisation
‘Securitisation’ is a concept developed primarily by Barry Buzan, Ole Wæver and Jaap de Wilde,Footnote 2 the principle members of what would come to be known as the ‘Copenhagen School’.Footnote 3 Their aim was to try and move beyond an ongoing debate about the true ‘meaning’ of security, by creating a common conceptual language which could be used for the discussion of a variety of otherwise very different security situations.Footnote 4 Instead of the nature of a specific threat, they argued that the way threats are discursively presented and tackled should be regarded as the core feature of security (prompting Huysmans to label this the ‘linguistic turn’ in security studies).Footnote 5 Security situations, they claimed, could be identified through their creation of a special kind of politics linked to crisis and emergency, which enables (and, indeed, requires) certain actions which would otherwise be deemed unacceptable. In particular, by declaring a security emergency, an actor
has claimed a right to handle the issue through extraordinary means, to break the normal political rules of the game.Footnote 6
The construction of threats which enables the allocation of this rule breaking power, is, for Buzan, Wæver and de Wilde, the essence of security.
Within securitisation theory, as it has come to be known,Footnote 7 the construction of threats takes place following what Buzan et al. call a ‘grammar of security’, which consists of the construction of ‘a plot that includes existential threat, point of no return, and a possible way out’.Footnote 8 The importance of the particular issue, and hence the possibility of rule breaking action, is created through the architecture of this plot. Plots themselves are formulated by ‘securitising actors’, who declare that the particular issue constitutes an emergency, and should thus be securitised (what the authors call a ‘securitising move’);Footnote 9 the audience to this move can either accept or reject this declaration, and thus decide whether the issue is securitised.
Michael C. Williams called securitisation ‘one of the most innovative, productive and yet controversial avenues of research in contemporary security studies’.Footnote 10 As such, it has generated a large body of follow up literature, including some substantial critiques. The majority of these have so far focused on the approach of securitisation to threat construction, both in terms of the internal mechanics of the theory, and to what extent it captures fully the process by which society constructs threats: here I give a brief overview of the concerns raised.Footnote 11
Firstly, as many authors have pointed out, there is a problematic vagueness around the process through which these key concepts of securitising actors and audiences interact to create securitisations.Footnote 12 Exactly who decides when a securitisation is successful? Buzan and Wæver vacillate here, sometimes claiming that the mere act of the declaration causes security, at other times claiming that the audience must accept the declaration.Footnote 13
This problem is compounded by the fact that, in practice, it is frequently difficult to identify who the audience is, especially when the locus of decision-making power is not clear (as in the case of the EU).Footnote 14 As Salter argues, any given security policy requires the assent of many different types of audience, from experts and practitioners to the general public; and different audiences may be convinced by different methods, a point which Buzan and Wæver appear to accept.Footnote 15 In this regard, Balzacq's reformulation of audience as empowering audience (that is, the group which can enable the securitising actor to take the action proposed) is useful.Footnote 16
Beyond the inner workings of the theory, some authors have criticised the scope of the framework.Footnote 17 As I mention above, securitisation aspires to be a theory that links all different types of security situation; but some authors have questioned whether this framework can really be extended to study the whole process of how a society constructs threats. This critique revolves to an extent around the intentionality and immediacy implied in the initial formulation of securitisation: something which is declared, accepted, and acted upon almost instantaneously. Williams, for instance, has pointed out that ‘to focus too narrowly on the search for singular and distinct acts of securitization might well lead one to misperceive processes through which a situation is being gradually intensified’.Footnote 18 He argues for the importance of images in threat construction, giving the example of media images of asylum seekers attempting to illicitly enter the UK through the Channel Tunnel.Footnote 19 In this case, it is difficult to identify a particular securitising actor, yet the importance of the images for constructing the threat is obvious.Footnote 20
This problem is connected to the institutionalisation of security threats, and the subsequent importance of these institutions for defining future threats. In the European context, Didier Bigo, for example, has consistently highlighted the importance of security professionals, who often connect in international networks, for shaping and defining threats.Footnote 21 Jef Huysmans, meanwhile, has shown how security institutions both mould responses to security situations, and serve to fix in place new security arrangements once reached.Footnote 22 In both of these cases, the generation of security threats is a long and subtle process, not limited solely to overt declarations of threat.
The problem of scope is also connected to the heavy focus placed by the theory on discourse. Many of these audiences may operate in secret, and it is not clear that they are convinced only through reference to public declarations of emergency.Footnote 23 Buzan and Wæver do note that security is not always conducted in a climate of openness and accountability, but this is troubling for their assertion that it can be studied directly, in discourse.Footnote 24 Furthermore, the idea of audience acceptance tends towards implying that actors have the power to reflect and come to decisions, and that all security policy is more or less accepted by all members of society, an assumption which is, to say the least, problematic.Footnote 25 In this regard, several authors have critiqued the Copenhagen School for trying to read a universal concept of security from purely Western, state-centric examples.Footnote 26
This article seeks a fresh perspective on these debates, by placing the focus on the outcomes of securitisation. Assuming a threat is successfully constructed, how does this translate into the breaking of rules? This area, while comparatively understudied in the literature, is of increasing importance, with authors such as Balzacq, Léonard and Kaunert, and Salter starting to comment on the means by which securitisation results in specific outcomes once achieved.Footnote 27 As I shall try to show, by focusing on the types of rules securitisation can break, some difficult questions about audiences, intentionality, and immediacy can be clarified.
The manner in which the normal rules of the game are broken following a successful securitisation is unclear in the original formulation of the theory. As several scholars have pointed out, in the Copenhagen School's initial work, no actual action (for example, a policy output) is even required for a securitisation to be considered successful.Footnote 28 Salter highlights the following crucial passage:
We do not push the demand so high as to say that an emergency measure has to be adopted, only that the existential threat has to be argued and gain enough resonance for a platform to be made from which it is possible to legitimize emergency measures.Footnote 29
This definition, as Salter notes, creates problems when it comes to distinguishing between successful and failed securitisations. A failed securitisation and a successful one which nevertheless produces no policy outcome will manifest themselves in much the same way, as resonance ‘is simply too unstable a category to really evaluate’, he argues.Footnote 30 For this reason, in practice many applications of securitisation theory have taken the appearance of actual rule breaking procedures as the ultimate indicator of successful securitisation. However, even assuming there is an outcome, the mechanism by which this occurs is left undefined in the initial theory, or at least compressed into the moment of securitisation: in the framework, accepting a definition of existential threat and the proposed ‘possible way out’ appear to be one and the same action.
This under definition is problematic for the theory of securitisation. Empirical research has shown that a security situation can be generally accepted, yet individual rule breaking procedures which purport to tackle it still rejected. It would be difficult to claim, for example, that the threat of terrorism has not been securitised in many Western countries following the attacks of 9/11 (if it was not already). Yet a huge variety of different policies have been proposed to tackle this threat: not all have been accepted.Footnote 31 Buzan and Wæver themselves have defined terrorism as a ‘macrosecuritisation’,Footnote 32 a security threat which can connect to a huge range of more specific policies. But this raises the question of how this connection occurs, and how some policies succeed whilst others fail. This question returns to the original puzzle proposed at the beginning of this article: how were the specific set of rules which are broken by control orders chosen over others?
Before examining how one rule is broken rather than another, however, it is useful to examine in more detail what types of rules can be broken in the first place. What are these ‘normal political rules of the game’ which securitisation enables actors to break? Buzan et al. offer the following series of examples of powers that an actor can claim through securitising:
secrecy, levying taxes or conscription, placing limitations on otherwise inviolable rights, or focusing society's energy and resources on a specific task.Footnote 33
They do not by any means intend this list to be exhaustive. The founding idea of securitisation is that no issue is, ipso facto, a security threat, but that anything could be constructed as one; it follows therefore that any type of rule could potentially be implicated in a securitisation. This is something which is borne out in practice: in empirical studies which have applied the theory, the form that rule breaking takes can vary widely. As its authors intended, securitisation theory has created a broad church, unifying an impressive range of different subjects: HIV/AIDS, the Tiananmen Square massacre, European migration, UN security council decisions, cyber security, as well as the more traditional security studies subject of interstate war.Footnote 34
A review of this literature identifies two broad ways of regarding rules which can be broken by securitisation: rules as restraints to action, and rules as behaviours. The crucial difference between these two categories is the roles of securitising actor and audience. In the case of restraints, it is the securitising actor themselves whose action is liberated: they legitimise the breaking of rules which they themselves will break. In the case of behaviours, the securitising actor is trying to motivate the actions of the audience, rather than justify their own conduct. Here, an overview of these two categories is offered. The argument pursued is that, rather than something which can be determined as part of a general characteristic of security, it is the structure of the rule in question which determines the role of the securitising actor, the extent to which the audience is required to accept their particular declaration, and the immediacy and intentionality of any particular securitisation.
Breaking restraints
Perhaps the most obvious way securitisation manifests itself is through breaking rules which limit what certain actors are allowed to do. This can occur in several senses. Legally speaking, governments might invoke constitutional rights to declare a state of emergency in which the entire legal order ceases to apply. In this respect, as many authors have pointed out, securitisation has close parallels with the work of Carl Schmitt on the concept of sovereignty.Footnote 35 Depending on the form of the constitution, the actor with the right to suspend the order may simply do so by declaring security as the reason (Schmitt's work focused specifically on Article 48 of the 1919 Weimar constitution). In this type of securitisation, there is no genuine audience, or at least no empowering one. The securitising actor must follow an internal grammar to fulfil the conditions of their legal declaration, but has no obligation to convince anyone that their reasoning is sound.
However, as several scholars have complained,Footnote 36 this is not an accurate reflection of how much security policy is pursued, especially in non-authoritarian regimes. The idea of a complete suspension of an entire legal order is simply improbable in most contemporary democracies. Of more relevance, therefore, is the notion that securitisation can also legitimate temporary derogation from certain types of rules, or even just interference with them.Footnote 37 For example, the Copenhagen School points to the securitisation of a principle of human rights as justification for humanitarian intervention, and thus the suspension of sovereignty.Footnote 38 The institution of sovereignty is not destroyed for good, just suspended for long enough to deal with the particular issue at hand. In these circumstances, securitisation may or may not require an audience, depending on the structure of the rule being derogated from. If the securitising actor faces oversight (for example, from a supreme court), then the relevant audience is that which provides this oversight (as Balzacq argues, the relevant audience is the one that empowers the given action);Footnote 39 if the relevant rule is structured in such a way as to already contain exceptions for security, then the action will be more or less self authorising.
Furthermore, restraints need not solely be legal in character. Securitisation can simply enable an actor to do things which previously seemed politically impossible (but which nevertheless would be perfectly legal). Deployments of military force, for instance, often require the conviction of the public and members of the legislature that they are a legitimate choice, even if they are not necessarily illegal in and of themselves. Reference to a security threat can provide this.Footnote 40 In these cases the act becomes dependent on the authorisation of an audience, as the implication is that the securitising actor is bound by the expectations of some group (for example, public opinion, legislature). Only by changing the view of this group can they act in the way they want to. This type of rule breaking has strong connections with certain theories of public policy construction: securitisation can create the conditions under which previously impossible policies become legitimate.Footnote 41
Finally, rules can also be broken in the way actors decide on what actions are legitimate (rather than just legitimating new actions). Successful securitisations create a specific kind of closed, political behaviour, which works to ‘silence opposition’ and unify a particular audience around a common goal.Footnote 42 By implication, therefore, actors become liberated not only in the type of action they take, but the means through which they can take it (for example, legislation could be passed quickly, with minimal debate). Issues can also be silenced entirely, which can be a very effective political tactic.Footnote 43
The restraint breaking effect of securitisation is where the theory is at its most immediate (though, as Wilkinson has noted, securitisation can also be used to legitimate action retroactively).Footnote 44 When there is no relevant audience, rules can be suspended and martial law declared in an instant. Even when there is an empowering audience, the nature of the grammar of security declaration will mean that their response (to accept or not) must come as soon as possible. Here the intentionality of securitisation is also clear. Actors will declare a security emergency to achieve a specific effect: the legitimate suspension of the legal order, or to make acceptable some action which would otherwise be deemed impermissible.
Changing behaviour
When securitisation breaks restraints, the securitising actor is the one performing security. That is, an actor demands the right to take an action (through securitising), and then takes it. However, securitisation can also be used to exhort action: a securitising actor can use security to convince others to act. This mobilising power of security is distinct from the function of legitimating the breaking of restraints,Footnote 45 though it might occur in tandem (as the action of the audience is not only exhorted but justified).Footnote 46 In this case, securitisation is not only dependent on the assent of the audience: the audience is the performing actor, those who the securitising actor is calling upon to take action. The securitising actor can still emerge from the state (and could be calling on other states),Footnote 47 but does not have to: it could be a bottom-up exhortation for the state to take action, might involve little or no claim on a state at all, or may even, in the case of revolution, cast the state as the threat itself, and take action against it.Footnote 48
In this case, the ‘rules’ being broken are established patterns of behaviour which, in the view of the securitising actor, need changing in order to resolve the issue at hand. The kind of action proposed by environmental securitisation, for example, is not legally problematic. Nevertheless, changing the way societies consume resources is an enormous challenge which would require both individual and collective sacrifices.Footnote 49 This second type of rule breaking points to what has often been regarded as the ‘positive’ effects of securitisation.Footnote 50 When critical security studies as a field began, one of the hopes was that the driving energy of security could be redirected towards positive goals. For example, by creating an inclusive concept of ‘human security’, human rights could be defended through securitisation. However, it also has its negative aspects. Securitisation can serve to create a kind of antagonistic politics, which appears implicit in the Copenhagen School's claim that desecuritisation represents the ‘optimal long range solution’,Footnote 51 though the reasoning for this remains underdeveloped in the theory. Society is not just mobilised through security; it can be mobilised against a particular group, which in a way aids the construction of a unified identity.Footnote 52
Here, the intentionality of securitisation is clear in only some circumstances. Actors deploying security in order to exhort action may do so with the type of action they want to see in mind. However, as Williams argues, other factors such as images can also slowly convince people to take action, even if those relaying those images have no particular interest in that action taking place. The immediacy of securitisation is also less obvious here. Conviction may happen immediately, may happen slowly, or may not happen at all.
Control orders: finding the breaking point
The previous section identified the scope of securitisations: the possible rule breaking effects that can result from a successfully declared securitisation. I argued that a wide variety of different types of rules can be broken by securitisation, and it is the structure of the individual rule which determines the roles of actor and audience in breaking them.
However, what still remains unclear is how, amongst all possible effects, one or more is eventually produced as the outcome of a successful securitisation. In the following section, I want to answer this question by tracing the process of the construction of control orders legislation: examining how the securitisation came about, outlining the variety of different rules which could have been broken, and analysing the ways in which securitising actors and audiences decided on the eventual outcome. The example of control orders is intended to be a ‘revelatory case’: that is, it is intended to bring into focus previously understudied social dynamics.Footnote 53 From this case, some more general conclusions about the process of rule breaking which follows a securitisation will be drawn.
Securitisation and liberty
The securitised issue which produced control orders as a policy response can be separated into two parts. Firstly there is the general threat of ‘terrorism’, something to which the UK was historically accustomed to, but which gained new meaning and significance following the attacks of 11 September 2001 (9/11). Terrorism, as a ‘securitisation’ can be linked to many different issue areas (as I outline above, it has been classified by the Copenhagen School as a ‘macrosecuritisation’). While relevant to the emergence of control orders, it is not the aim of this article to consider how terrorism was constructed as a security threat. Suffice to say that I consider it obvious that, both before 9/11 but especially afterwards, terrorism constitutes an area of policy in which states regularly intervene, and furthermore consider to be a security priority.
Of more immediate relevance to the construction of control orders is the securitisation of a certain category of foreign terror suspect in the UK immediately following 9/11. The security services suspected a certain number of individuals within the UK of posing an imminent threat, a definition which the government accepted. However, the government regarded it impossible to tackle these individuals using the current criminal justice system: based not only on the scarcity of hard evidence, but also on the difficulty of admitting certain types of surveillance evidence in UK legal proceedings, combined with the general desire of the security services not to have to reveal their surveillance processes in court in order to pursue prosecution. The government also argued that they were unable to deport these individuals, based on respect for the 1997 ‘Chahal’ ruling of the European Court of Human Rights, which proscribed deportation to any country where the deportee might face torture.
The government felt, in other words, that new policy was required to tackle this threat, policy which was contained in the 2001 Anti-Terror, Crime and Security Act (ATCSA). Certain provisions of the act derogated explicitly from the European Convention on Human Rights (ECHR), by allowing the UK's Home Secretary to issue orders for these individuals to be detained indefinitely without bringing a specific charge, and with only a minor procedural review process which removed most of the rights normally enjoyed by the accused under UK law. These orders were allowed if the Home Secretary ‘reasonably (a) believes that the person's presence in the United Kingdom is a risk to national security, and (b) suspects that the person is a terrorist’.Footnote 54 Cases were heard by the Special Immigration Appeals Committee (SIAC), a court established to deal with immigration matters that was used to this type of atypical legal procedure.Footnote 55 Between 2001 and 2005, 16 men were detained under the act, all foreign nationals.Footnote 56
The construction of this securitisation shows that several different types of rule might be broken in order to deal with the issue at hand: the legal restraint of the 1997 Chahal ruling; the way the security services interact with the UK criminal justice system; or certain fundamental rights these individuals normally enjoyed which act as restraints on the way the government can behave towards them. The first two of these rules resisted the force of the securitisation, but not the final category: rights to due process were interfered with through use of the SIAC, and the right to liberty was expressly derogated from. An initial observation is therefore simply that securitisation does not just push actors and audiences to weigh the merits of security threats against individual rules, but also the strength of different rules against each other. If it is accepted that some rules must be broken then the specifics of the threat itself become somewhat immaterial: the question is which rule is strongest.
However, in 2004 the House of Lords declared ATCSA to be incompatible with the 1998 Human Rights Act (which incorporated the ECHR into UK law). They accepted that there was a state of emergency, and furthermore that the government should have a reasonable margin in deciding the existence of such an emergency.Footnote 57 However they found fault with the policy on the grounds that it was both disproportionate (the threat these men posed did not justify the removal of their liberty) and discriminatory (it applied only to foreign nationals).Footnote 58
Securitisation here works in an interesting way. The securitisation which led to ATCSA had been accepted by the legislative for three years before the judiciary finally rejected it. When they did, their rejection was based not on a desecuritisation of the issue, but simply on a reinforcement of certain types of rules that had been broken: in this case two rights under the ECHR. The right to physical liberty, in this case, proved particularly strong, and the security threat in question did not justify its breaking.
Furthermore, one of these rules (discrimination) was broken as a consequence of pursuing the above securitisation, but was not a central part of the legislation (that is to say, ACTSA did not need to be discriminatory to function). This serves to show how meshed into structures of rules contemporary security policy is: any given piece might violate a variety of different rules.
The disaggregation of liberty
Part IV of ATCSA came with a built in ‘sunset clause’: parliament was required to vote to renew it on a yearly basis. The Law Lords ruling on ATCSA came in December 2004, three months before the next deadline in March 2005, when the policy would now expire. A response was therefore needed quickly. Faced with this decision, the government had three options: abandon their securitisation to failure and deal with the prisoners through the normal rules of the game; ignore the ruling, and risk almost certain prosecution; or devise a new solution.
The government chose the third option, outlining a new policy little over a month later:Footnote 59 a system of special detention powers known as ‘control orders’. These orders, which came into being in March 2005 as part of the Prevention of Terrorism Act, were defined as ‘an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism’.Footnote 60 Those subject to them were not imprisoned, but nevertheless had a huge array of restrictions placed on their daily lives, including curfews, obligations to report to the police on a daily basis, prior checks on visitors to their houses, a ban on group meetings, and restrictions on access to the internet.Footnote 61 The legal process, though taken away from SIAC, remained essentially the same.Footnote 62 Enforcement, meanwhile, was to be provided through a mixture of police surveillance and electronic tagging.
The use of this type of surveillance is important for the way this securitisation affected the rules concerned. In particular, it allowed a sort of ‘disaggregation’ of individual rules: rather than liberty being an all or nothing right, individual liberties such as access to the internet could be considered and suspended piecemeal. In the end, control orders permitted a certain type of liberty, whilst nevertheless stripping away many of the things normally associated with a free human life; but this disaggregation allowed the government to argue that this type of procedure would not require derogation from the ECHR under article 5, because the person in question was not imprisoned.Footnote 63
The idea of non-custodial sentences supported by electronic tagging was not a new one in UK law. Britain already relies heavily on the technology for parolees and bailed prisoners, with over 50,000 individuals electronically tagged in the year leading up to the imposition of control orders,Footnote 64 and their use ‘has mostly been accepted by the probation and social work staff on whose professional territory it has impinged’.Footnote 65 The extension of tagging to terrorist suspects was also not a new idea. The 2003 ‘Newton Report’ made by the Privy Counsellor Review Committee criticised the application of detention without trial, and recommended a number of potential other solutions, including the imposition of ‘restrictions’ which fall short of outright detention.Footnote 66 This idea was repeated in 2004 by a review of the Joint Committee on Human Rights in their report on the SIAC process. In their 2004 response to the Newton report, the Home Office rejected the idea of using electronic tagging of terrorists, arguing that it would not provide sufficient security.Footnote 67 Less than a year later, they changed their mind.
How does the above impact on the theory of securitisation? Firstly, it emphasises the fact that security policy is not formed on a blank slate: previous choices in the area over which rules can be broken must be taken into account. This to some extent repeats a now familiar critique of the original formulation of securitisation theory, that it was not attentive enough to the context within which securitisations take place.Footnote 68 However, previous choices are not quite the same as context: they represent previous negotiations between the same securitising actor and audience, not just the environment in which they operate. They will therefore close off specific paths, and reinforce particular understandings of the problem: in this case, the government understood from an earlier empowering audience (the judiciary) that some exceptional action could be legitimate, just not action which led to the outright suspension of liberty. We can see here that the 2004 ruling did little to alter the way in which the threat of terrorism was constructed: it merely altered the way in which different types of rules were weighed against it, and against each other.
Secondly, it says something about the ways in which policy is formed to tackle securitised issues once constructed. The fact that a new policy was formed so quickly is consistent with the idea of a security threat which needs to be tackled urgently by any means necessary. What is perhaps interesting for studies of securitisation is that while the theory seems to point towards the potential acceptance of new and radical ideas, in the end the solution developed was based strongly on existing practices in other areas, and had in fact previously been rejected. Faced with a plot that included a point of no return but not a possible way out, the government was forced to adopt any idea available.
The adoption of control orders legislation (as part of the 2005 Prevention of Terrorism Act) was highly controversial. The government presented the case in exactly the way the theory of securitisation would lead us to expect, arguing ‘that the potentially catastrophic scale of a modern terrorist attack pointed inexorably towards the need for pre-emption’.Footnote 69 This line of argument was however not wholly successful. Although the bill passed, it attracted strong opposition from within the governing Labour party, from opposition parties, and from human rights groups such as Justice, Liberty, and Amnesty International, and the eventual vote was won by a very small margin. Two reflections can be drawn from this short but vitriolic debate.
The first is that, as an empowering audience to the securitisation, the legislative nevertheless participated itself in the formation of the bill, thus shaping the overall outcome. By outlining points of resistance, and winning concessions, they did not just accept or reject a securitising move, but helped ‘channel’ the force of the securitisation, and thus helped decide the way in which rules would eventually be broken as a result.
The nature of the debate and these concessions was as much about the procedure for putting in place a control order as it was the specifics of the order itself (and one of the most important sticking points, eventually conceded by the government, was the need for judicial review of individual orders). Charles Clarke, Home Secretary at the time, set out the problem as follows:
whether it is done by the Home Secretary or a judge, the people of the United Kingdom will be better protected if we have a regime of control orders that deals with the people in question … the question that then arises is whether a Minister – the Home Secretary, in this case – is in a better position to make that assessment [whether a control order should be enacted] than a judge. I argue that the Minister would be in a better position to make the assessment … However, I also accept the argument that, in the case of deprivation of liberty, the penalty is so great that judicial involvement is required. That is the basis of the argument that I make.Footnote 70
Clarke's argument is essentially that a subject's rights to due process could be reduced if the penalty against him was also reduced. Here in other words we can see again the strength of rules being weighed not just against security but against each other, and also the way their disaggregation facilitates this weighing process, allowing them to be traded piecemeal.
The second reflection concerns the procedural means used by the government in their presentation of the bill, in particular the way in which very limited time was allowed for debate. As outlined above, restraints exist in terms of the way policy is formed, not just the type of policy which is legitimate. The restraints do indeed seem to have been broken here, in a fashion that was called ‘grotesque’ by shadow Attorney General Dominic Grieve.Footnote 71 However, there is a distinction to be drawn between a process which allows itself to be subverted, and one which protests against such treatment. As Menzies Campbell of the Liberal Democrats put it:
All legislation is important, but surely no legislation is more important than legislation that might have the effect of depriving the individual citizen of his or her liberty.Footnote 72
In other words, while the securitised nature of the bill provided plausible grounds for haste, it also provided equally plausible grounds to complain about that haste: the nature of the bill, whilst pertaining to security, also altered the very structure of the legal system in the country. Though the difference here is a matter of hours, it is nevertheless significant that the parliamentary debate took up all the time it was allowed in the commons, whilst the House of Lords held one of its longest ever sessions.Footnote 73 While these audiences were in the end unable to prevent breaking of the rules in this area, they did not accept the breaking as legitimate either.
Channelling the effects of securitisation
A final point of significance about control orders is that the form they took developed significantly following their adoption. In one particularly striking example, already referred to above, a control order subject known as AE was refused permission to attend a local college to follow AS-level courses in either Biology or Chemistry (a high-school level course normally taken by students between the ages of 16 and 18). AE's stated aim was to begin studies which would allow him to attend medical school. Permission was refused on the grounds that:
Attendances of AS level courses in Chemistry and Human Biology would present national security concerns relating to access to materials and opportunities to develop understanding and knowledge in areas that could be used for terrorist-related activities.Footnote 74
The control being exercised here is of a very particular type: over one potential future of one particular individual. Not the blunt instrument of prison, but a particular encircling, a closing down of certain paths. The logic of threat politics, codified within the act, has thus been extended into the minutiae of everyday life. Taking the qualification would lead AE down a path where both medical school and terrorism were possibilities. The risk of terrorism meant that medicine was closed off to him (he was later given permission to attend an AS Level English class).
This type of educational restriction, with the aim of controlling future development, was not specifically foreseen by the act, but rather developed through use. Presented with the technological capacity to apparently exercise control over the future of the individual, the government extended a security logic into the training he could take and the type of person he could become. Control orders, in other words, became what Balzacq calls an ‘instrument of securitisation’: something that defines how public action is directed towards specific threat images.Footnote 75 They do not so much break rules in themselves, as formalise the procedure for the breaking of specific rules in individual cases. The securitising actors, threats, and audiences are now precisely defined: the actor is the Home Secretary, the threat is any (future) person who they suspect of posing a terrorist threat, the audience the judge who reviews their petition. Once in place, they not only control the individual in question, but provide further, even more specific securitisation instruments, as the individual must ask the Home Secretary for permission to engage in almost any type of societal interaction. The restriction of the AS level course is therefore not the result of one securitisation, but multiple nested securitisations, each one digging down into a more specific area of life, overriding a more specific rule. The presence of this tool of securitisation has given the Home Secretary a meticulous, fine grained control not only over what these individuals do, but what they can become.
Another cause of developments to control orders has been the continual legal challenges to the system, mounted by lawyers of the various men involved. A variety of different cases heard in UK courts have brought rulings quashing individual control orders, changing the maximum curfew time, and altering rules on forced relocations. In a particularly significant case in June 2009, the Law Lords ruled that control orders breached article 6 of the ECHR (right to a fair trial), because those subject to control orders were not allowed to know the allegations against them. From this point on, all control orders would require disclosure of ‘sufficient information about the allegations … to enable [the subject of the order] … to give effective instructions to the special advocate’ (though any evidence lending support to the allegations could still be kept secret).Footnote 76 This led to the revocation of two control orders, after the government decided that it would rather release the detainees than disclose the necessary information.Footnote 77 These developments show the process going in reverse. Once legislated, control orders began to violate a variety of different rules: in considering these piecemeal, judges have slowly reinforced individual ones, thus pushing back on the limits of what these orders achieve.
These developments highlight both the flexibility and granularity of this type of securitisation: how rules come to be disaggregated, and how securitisations are channelled towards different breaking points. Rather than a bundle of rights, liberties can be considered individually: the right to choose a place of residence, the right to communicate with the outside world, the right to gain employment, etc. Each one is weighed against the potential security benefits, some strengthening, and some rupturing.
However, set against this notion of advanced control are the number of notable problems with the orders. The most obvious of these is that, of the 45 individuals placed under a control order, seven successfully absconded. Other detainees have gone to lengths to demonstrate the ease with which they could potentially escape.Footnote 78 Electronic tags were not applied in all instances, and in at least one case a subject was able to remove his tag. When commenting on the escapes, the scheme's independent reviewer said that the government ‘did not have the resources to monitor everyone on a control order 24 hours a day’.Footnote 79
A second problem concerns the claim that these control orders really preserved, at least to some extent, the liberty of the individual. While they were of course physically free (at least for the non-curfew period), interviews with those who have undergone the orders highlight the psychological impact of being controlled in such a way, unable to meet people, unaware of the charges against you, and unconscious of how much longer the condition might persist for.Footnote 80 There is also the crucial issue of the family of the accused who, occupying the same premises, in a sense suffer the same fate (for example, regular searches, restrictions on guests). Apparently, while a right to liberty has prevailed in a certain technical and legal sense, the way these individuals experience their lives has not been improved, and in fact may well have got worse. Cerie Bullivant, an individual placed under a control order which has since been quashed, highlights the impossibility of living any type of normal life in that sort of situation:
one of the liaison officers said that he felt that it would have been good for me to get out and go and get a job doing something else as the control order completely dominated my life. The irony is that I could not get a job without Home Office permission and I would have to find an employer who would not mind the Home Office calling him and asking if he knew I was a terrorist.Footnote 81
The securitisation which generated control orders has therefore been channelled, somewhat paradoxically, into a rule breaking policy which significantly impedes on the course of the individual's life, yet permits them relatively easy escape if they so desire.
Conclusion
The Labour party, which introduced control orders, lost power in 2010, and the new coalition government formed by Conservative and Liberal Democrat parties swiftly moved to review the system. In January 2011, a new package of ‘terrorist prevention and investigation measures’ was announced, which will make a number of modifications to the control orders system, though also leave many key features untouched.Footnote 82 At the time of writing, these proposals were in the process of going through the legislature, with their introduction expected at the end of 2011; they will no doubt be subject to continual judicial review as well. In other words, the process of channelling towards future breaking points seems set to continue. Even with the process ongoing, however, it is possible to pause here to draw some more general conclusions for the theory of securitisation.
Control orders, as I mention above, were intended to be a ‘revelatory case’: something which serves to highlight the process by which securitised issues result in rule breaking. Generalising from one case is always problematic; however, there are good reasons for suspecting that control orders are not a unique piece of security legislation. They formed part of the war on terror, which has been responsible for a huge range of policy outputs around the world. They are based on the extensive use of surveillance technology; technology which is spreading to many different types of security policy. Finally, perhaps most importantly, they were pursued through domestic political machinery, a phenomenon which is becoming increasingly common in many societies as the lines between internal and external security are blurred. It seems likely therefore, that any conclusions based on this case will have resonance in other security situations which occur in similar institutional contexts.
From this specific story, two concepts emerge which are important for the theory of securitisation. The first is that of disaggregation. The initial formulation of securitisation presented rules (both as restraints and behaviours) as all or nothing affairs. Either they remained solid in the face of securitisation (in which case the securitisation failed) or they broke. The story outlined above, however, presents a much more nuanced picture. Yes, rules can be suspended: but they can also be derogated from, or merely interfered with. Furthermore, new surveillance technology is permitting their disaggregation: it allows them to be considered piecemeal, rather than as a whole. Liberty especially becomes not just a distinction between incarceration or freedom, but a long list of potential freedoms, some of which can be suspended whilst others can remain intact.
This concept points to a need to reconsider the problematic definitions of success and failure in the theory. Were control orders the result of a successful securitisation? This is a very difficult question to decide with the currently available conceptual language. There clearly has been rule breaking action: emergency measures have been adopted, as the original formulation has it. However these measures were not the ones originally proposed by the securitising actor, and do not outright ‘break’ rules in most cases, so much as interfere with them. Furthermore, the evolution of the measure has not proceeded either by securitising or desecuritising the original issue, but rather through constructing nested securitisations (in the case of individual educational restrictions) and reinforcing of specific rules (in the case of judicial review), changes which have served to change the scope of rules broken in interesting ways. This securitisation, in other words, cannot be declared completely successful. Nevertheless to classify it as a failure, and therefore define control orders as somehow outside the scope of security policy, would limit the range of the overall theory of securitisation dramatically. This adds further weight to the argument made by Salter for the need for more nuance in the definition of success and failure in securitisation. Salter proposes a four point scale: issues first become part of political debate, and then become securitised, then the proposed solution is accepted, then emergency powers accorded.Footnote 83 To this scale one might add the extent to which any particular rule is broken. In terms of legal rules such as rights, this might run from interference to derogation, to outright suspension.
The second concept, related to disaggregation, is that of channelling. The type of securitisation described above occurs within an institutional framework: while the declaration of security does allow for the breaking of some rules, this rule breaking itself takes place within the boundaries of wider rule structures. In this case, legislative and executive decisions are always open to later judicial review. As I show above, these institutional frameworks mean that, rather than a simple act of declaration/acceptance, actor and audience engage in a multi-stage process of weighing different rules, or even different parts of different rules. At each stage, certain understandings are reinforced and certain paths are closed off. This process serves to channel the power of securitisation towards rules perceived as less important, or more flexible. Here we can see that physical liberty was the most important rule, reinforced both by the ACTSA decision, subsequent argument over legislation, and further judicial review. Other characteristics of ‘being free’, such as the right to apply for a job, or choose education, were interfered with, to the extent that those under the scheme had little practical use for their liberty, unless they wished to abscond. It is this process of channelling, not just the initial threat construction, which shaped the eventual outcome of securitisation, and thus served to decide on the ‘breaking point’.
