Abstract
After years of violating the basic principles of human rights in the name of counterterrorism, western democracies have begun to implement extraterritorial safeguards that extend protections under the Convention against Torture to foreigners abroad. The case of the UK and the development of the ‘Principles’ in 2019, however, presents a particular puzzle to policymaking research, as it challenges traditional hypotheses regarding the opening of problem windows within the multiple streams framework. Accordingly, the UK presents an interesting case in which a powerful state willingly engaged in self-restraint, despite little electoral pressure to do so and a persistently high terrorist threat. Drawing on theory-building process-tracing, this article addresses this gap using data from semi-structured interviews with British policy experts to present a refined hypothesis, which can also be applied to policy fields of little public interest and processes of foreign policymaking.
Introduction
‘The more a condition puts the policy makers’ re-election at risk, the more likely it is to open a policy window in the problem stream’ (H1) (Herweg et al, 2015: 437) – this hypothesis introduced by Herweg, Huß and Zohlnhöfer remains widely accepted in the multiple streams framework (MSF), but while it offers important insights into the nexus of domestic pressures and policymaking, it simultaneously raises a different question: how can we explain the opening of problem windows, when the triggering conditions do not put the decision-makers’ re-election at risk? Take, for example, the development of British anti-torture safeguards by Theresa May’s administration in the midst of Brexit. By providing pivotal intelligence, questions sets, and logistic support for rendition flights, the British Secret Intelligence Service (SIS) not only colluded with the American Central Intelligence Agency (CIA), but also benefited from information gained through torturous practices (ISC, 2018a: 3). Despite the publication of a parliamentary report, which deemed British anti-torture safeguards as insufficient and acknowledged the UK’s complicity in the American post-9/11 Detention and Interrogation Program (ISC, 2018a and 2018b), the British government faced little pressure to initiate any reform. In fact, the ‘Principles’1 were passed amidst open resistance from the public to any further investigations into misconduct by the military and intelligence agencies, during which human rights lawyers were frequently condemned in political debates as left-wing activists, who ‘harangue and harass the bravest of the brave [the British military]’ (May, 2016). Nevertheless, May, whose own political interests, ambitions and priorities rather contradicted any push for further extraterritorial human rights protections (May, 2016) immediately acted upon the parliament’s negative feedback, tasking the Investigatory Powers Commissioner’s Office2 (IPCO) to come up with a fitting policy solution to the problem. Even though the final policy output does not constitute a panacea against torture, this case illustrates a limitation in the prominent MSF literature, particularly relating to problem windows opening in issue areas of little public interest and foreign policymaking processes, providing thus an opportunity to refine Herweg et al’s original hypothesis.
When looking at MSF literature, problem windows are well discussed (see, for example, Knaggard, 2015; Béland, 2016; Zahariadis, 2016), despite this central role of the concept, however, current literature remains fairly vague and fails to comprehensively explain when, in the absence of electoral pressure, a condition passes the threshold of opening a problem window and how resulting coupling processes unfold (see Travis and Zahariadis, 2002: 496). Other policy models, such as Historical Institutionalism or the Punctuated Equilibrium Theory, might use different terminology and paradigms, but ultimately scrutinise the appearance of problems and their impact on sudden policy changes as well. By analysing the concept of critical junctures, scholars of Historical Institutionalism, for instance, provide extensive insights on how sudden problems materialise and how they subsequently influence the hitherto chosen policy paths of governments (Capoccia and Kelemen, 2007). Yet, while such notions can help detect whether or not a problem did actually pass the threshold of the problem agenda, they nonetheless fail to shed further light on why they did so in first place.
In light of this gap, this article follows a theory-building process-tracing approach to inductively derive new theoretical insights from the empirical data pertaining to the British case study (Beach and Pedersen, 2019). As will be shown in this study, the making of the British ‘Principles’ is, in contrast to other traditional (doctrinal coupling) (see Zahariadis, 2003: 72) as well as new (spillover commissioning) (see Ackrill and Kay, 2011: 77) MSF mechanisms, best explained by the concept of consequential coupling; although the incongruities mentioned earlier require a further refinement of the hypothesis postulated by Herweg et al. Hence, the study adheres to the general logic of the MSF, but remains open to inductively gained inferences regarding the opening of problem windows in the absence of electoral pressures. In order to do so, the article relies on a multitude of primary sources as well as on 13 interviews conducted with, among others, British Members of Parliament, former Executive employees, and the former Attorney General for England and Wales.
H2: The more a condition puts the policymakers’ influence on negatiations and general decision-making processes at risk, the more likely it is to open a policy window in the problem stream.
Regarding domestic policy issues, this influence is endangered if a policymakers’ re-election, and thus their position at the domestic negotiation table, is at risk. Regarding foreign policy issues, the policymakers’ influence is endangered if their personal credibility as state representative is at risk or if the problem jeopardises the state’s general reputation and thus its negotiating power in the international order.
In the light of these results, the article contributes to the academic debate in three ways: it enhances the theoretical understanding of policymaking processes, provides new empirical evidence, and bridges the field of policy research with the field of international human rights compliance. To begin with, the article inductively refines Herweg et al’s (2015) hypothesis on the opening of problem windows, which not only broadens the MSF’s understanding for processes where politicians act against the public will and their own political programme, but also opens the theoretical model to foreign policy analyses. The thorough analysis of new interview material and primary sources adds to the existing literature by offering a comprehensive picture of the events leading up to the British ‘Principles’ in 2019. Finally, the study applies a traditional policymaking theory to a topic that is usually located in the field of IR or international law, thus connecting research areas, which hitherto have mostly been kept separated.
The article’s first section outlines the research design by delving into the specifics of theory-building process-tracing, the criteria for case selection, and further details regarding data collection. Afterwards, the second section offers an in-depth analysis of the case study, the respective problem window and coupling process, before the third section presents the newly refined hypothesis and discusses further interesting findings such as Theresa May’s proactive role in, as well as Brexit’s influence on, the making of the ‘Principles’.
Research design
Theory-building process-tracing entails the analysis of an empirical narrative, which diverges from prevailing theoretical assumptions, and therefore enables the refinement of prevalent hypotheses and mechanisms (Geddes, 2003). ‘The goal is to translate this descriptive narrative into a blow-by-blow account that can plausibly link together C[ause] and O[utcome] as we attempt to figure out key causal steps in the process’ (Beach and Pedersen, 2019: 277). Even though such inductive approaches can sometimes uncover completely new theoretical schools of thought, it is still more common that respective research is inspired by an already existing theory as crucial components and causal linkages might differ, but the theory’s overall rationale remains applicable (Geddes, 2003). Given the mismatch between the empirical data and Herweg et al’s hypothesis on the opening of problem windows, the following article draws on a vast range of primary and secondary sources to identify systematic patterns in the empirics and to explain the events from an MSF perspective.
The study focuses on one particular case, the British policymaking process behind the adoption of the ‘Principles’ (HM Government, 2019). The case selection is based on three considerations: first, the interplay of the parliamentary reports’ publication [Cause, ‘C’] and the subsequent elaboration of a new extraterritorial safeguard [Outcome, ‘O’] suggests the existence of an underlying causal mechanism, which links C and O together and facilitates a theory-building process-tracing approach (Rohlfing, 2014: 617). Second, the empirical data tracing the development of the British safeguard indicates various incongruities with existing MSF mechanisms, posing a theoretical puzzle. Finally, aside from these theoretical and methodological considerations, the UK also poses an interesting empirical case given the state’s active involvement in global counterterrorism operations, and May’s proactive push for policy change despite the public’s indifferent if not opposing stance to the matter.
Despite their limited generalisability, single-case study designs have become common practice in inductive research approaches as such analyses provide detailed insight into the process in questions, and thus allow for well-informed inferences and theoretical postulations (Sikkink, 2013). When looking at a single case, the time and means that would otherwise be divided across multiple cases can be used to focus extensively on one specific process (Gerring, 2004), even if that means sacrificing cross-case comparisons. This concentration of resources, in turn, enables the researcher to map out complex developments in detail and to identify pivotal policy events and paths that might have influenced the process’ deviation from the existing theoretical models (Siggelkow, 2007). Correspondingly, theory-building process-tracing is subsequently used to draw clear-cut causal inferences, which afterwards, in future research, can be empirically tested via a ‘snowballing-outward strategy’ to generate a higher level of generalisability (Beach and Pedersen, 2019: 278).
In order to meet the standards of in-depth process tracing, the analysis is based on empirical data gathered from primary and secondary sources as well as on interviews conducted with British decision-makers and stakeholders. Primary sources including politicians’ public speeches, statements and meeting minutes have been analysed to filter out the decision-makers’ motivation for policy change; whereas, secondary sources were key to understanding interrogation guidelines, identifying central actors in the respective policymaking processes, and grasping current trends in the British anti-torture debate. In addition to the analysis of primary and secondary sources, interviews with key actors have been crucial in gaining further information, detailed insights, and first-hand accounts. Hence, in spring 2020, almost ten hours of recorded material was gathered in 13 semi-structured interviews, which have been conducted remotely as well as personally in London and Birmingham; among others, with the former General Attorney of England and Wales, Members of Parliament, and representatives from the Executive and civil society. The interviews used throughout this research follow the ethical guidelines of qualitative research (Miller et al, 2012) so that all interviewees have been fully informed about the purpose and the object of this study, and their privacy and confidentiality remain respected. All interview partners have been approached via email.
The multiple streams framework
Theoretical embedding
Since John W. Kingdon (1984) first introduced the MSF, the model quickly grew popular for its ability to explain why at a certain point in time, some policy proposals make it onto the decision agenda, while other proposals simply disappear (Van der Heijden et al, 2019: 5). The theory maintains that policymaking procedures are not inherently rational and linear processes, but rather the product of contingent stream development and a policy entrepreneur’s successful exploitation of a policy window (Herweg et al, 2015) following the successful alignment of three streams (Kingdon 1984: 19). The problem stream describes how policy entrepreneurs or problem brokers exploit focusing events, indicators, or negative feedback3 in order to gain the politicians’ and/or public’s attention, and to compel the incumbent decision-makers to take action (Brunner, 2008: 52). The political stream, in contrast, describes how the general public mood, electoral turnovers, or a politician’s ideology can influence prevailing political dynamics and alter the decision-makers’ disposition for change (Cairney and Zahariadis, 2016: 93). While in these two streams a policy window, a fleeting opportunity for advocates to push for policy change, can open (Farley et al, 2007), the policy stream rather focuses on the development of feasible policy alternatives. Accordingly, ideas emerge within the respective policy communities, where they are evaluated, modified and combined until they are narrowed down to a shortlist of feasible policy options (Zhu, 2008: 317). In order for policy change to occur, a policy entrepreneur must invest their resources and skills to successfully align all three streams. In MSF, lobbyists, stakeholders and academics usually take on the roles of policy entrepreneurs, but policy experts within the different parties (Herweg et al, 2015), or elected officials themselves (Zohlnhöfer, 2016: 89) can also advocate for policy change.
In light of this, and based on the assumption of ambiguity being a core component of any policymaking processes (Copeland and James, 2014: 2), MSF foresees three causal mechanisms that all share the same cause and outcome, but ultimately pertain to different constellations of the building blocks mentioned earlier and alignment processes (see Figure 1). Hence, all three causal mechanisms start with patterns of independent, contingent stream development, as the discrepancy between short-lived problem attention and the long process of solution finding renders scenarios of linear policymaking processes as rather unlikely (Cairney and Zahariadis, 2016: 87). The mechanisms’ common end, however, is the final policy adoption, which, for instance, enhances the statute’s scope, increases the level of accountability, provides more precise legal language, or expands the legal bindingness of an already existing safeguard (Abbott et al, 2000: 408–9; Fariss, 2014: 299). In assuming policy adoption as final point, the study differs from Kingdon’s original theory, which solely focuses on the specification of alternatives. Yet, in the light of the Executive nature of counter-terrorism reforms, such a convergence of agenda-setting and policy adoption seems plausible as related governmental policy changes do not require further rounds of negotiation, nor additional parliamentary approval processes. In policy fields that do however necessitate additional parliamentary adoption procedures, further analyses of the corresponding mediation and decision-making cycles should be considered and added to the model (see Herweg et al, 2015).
Causal mechanisms of stream alignment
Citation: Policy & Politics 50, 2; 10.1332/030557321X16375950978608
Causal mechanisms of stream alignment
Citation: Policy & Politics 50, 2; 10.1332/030557321X16375950978608
Causal mechanisms of stream alignment
Citation: Policy & Politics 50, 2; 10.1332/030557321X16375950978608
The first mechanism, doctrinal coupling, accounts for processes in which an elected official adapts their political agenda and starts pushing for a new pet policy, after changing political dynamics have opened a policy window in the politics stream (Herweg et al, 2018: 27). As the official’s policy-seeking motivation is often not transferable to other decision-makers and consequently hampers corresponding persuasion and bargaining efforts, the elected official, acting as a political entrepreneur, evokes a hitherto unrelated, but fitting narrative from the problem stream to substantiate and broaden their policy claim (Boscarino, 2009: 416). Once the majority of politicians supports the envisioned reform, the decision-agenda’s amendment and the subsequent policy adoption ensue (Zahariadis, 2003: 72). Consequential coupling, in contrast, describes how policy entrepreneurs frame a focusing event, relevant indicators, or negative feedback to convince decision-makers of adapting their problem agenda (Zahariadis, 2003: 72). If successful, they can then step in to sell their proposal to the elected officials by presenting their ideas as best option available (Jones, 2003: 396). Lastly, spillover commissioning, outlines how institutional spillovers from one policy field to another open a policy window in the politics stream by putting the affected officials under such a reform pressure that they actively seek the help of the policy community (Ackrill and Kay, 2011). ‘In the search for legitimate solutions […], policy makers will tend to choose from an existing menu of policies in order to maximise value acceptability and technical feasibility’ (Copeland and James, 2014: 8). Upon finding a fitting, pre-existing policy alternative, the elected official amends the decision-agenda to the seemingly new policy (Ackrill and Kay, 2011).
The making of the ‘principles’
As will be subsequently shown, the policymaking process behind the British ‘Principles’ follows the logic of consequential coupling, but diverges from previous assumptions, as even in absence of related electoral pressures, the parliament’s negative feedback still triggered the opening of a problem window. The remainder of the section will delve into an in-depth analysis of the British case study, unravelling the emergence of the problem window, demonstrating the subsequent unfolding of the consequential coupling process, and illustrating the need to refine Herweg et al’s hypothesis in order to account for developments on the international stage.
Contingent stream development
Upon entering the ‘War on Terror’, the UK not only provided military help to the US, but also warranted the British secret intelligence services’ (SIS) assistance to the American Central Intelligence Service (CIA) and its Detention and Interrogation Program (European Parliament, 2006: Sec. 289). In consequence, the UK was found complicit in severe breaches of the Convention against Torture (CAT), as British personnel provided on at least 232 occasions pivotal information and question sets to their American counterparts ‘despite knowing or suspecting that the detainee had been or was being mistreated’ (ISC, 2018a: 3). British officers also reportedly left an ongoing interrogation, only to return after the detainee had been ‘roughed up’ and showed signs of being ‘physically hurt’ (ISC, 2018a: 34). Relatedly, the UK permitted US rendition flights via British air bases, despite accounts of detainees being transported in sealed, coffin-sized boxes, and SIS officers hearing screams from the hangars (ISC, 2018a: 32f; European Parliament, 2006).
Over the years, however, legal proceedings and media leaks partially revealed the UK–US collusion to the public, so that in 2010, under the pretext of easing MI6’s workload, David Cameron eventually tasked Peter Gibson with an inquiry into the allegations and introduced a new interrogation guidance4 (Clarke, 2012). In the light of strong criticism, and pending court cases, however, the members of the Gibson Inquiry saw themselves forced to conclude their work prematurely in 2012, publishing a final report and passing on the preliminary results to the Intelligence and Security Committee of Parliament (ISC) (ISC, 2018a: 8). Cameron’s ‘Consolidated Guidance’ (HM Government, 2010a), in turn, constituted the first publicly available outline of British interrogation standards for foreigners abroad (HM Government, 2010b); yet, despite this increase in accountability the policy still drew a lot of criticism given its omission of rendition processes, its reliance on assurances, and the considerable discretionary power granted to some of the Ministers (Liberty, 2018; Equality and Human Rights Commission, 2019: 2).
In 2014, the ISC eventually re-opened Gibson’s prematurely ended investigation; a step that was originally meant to warrant accountability, but which ultimately bolstered the government’s narrative of denial and public pressure mitigation. In the light of the ‘Consolidated Guidance’s’ limitations, some public actors had attempted to pressure the political leadership into policy refinement, but the government successfully thwarted such efforts by denying any wrongdoings and by pointing towards pending investigations into any torture-related allegations (Blakeley and Raphael, 2020). Similarly, neither leaks of old policies, nor charges of war crimes at the International Criminal Court raised sufficient political or public interest to elicit demands for policy change.5 The 2015 Report of the Intelligence Services Commissioner Sir Mark Waller posed the only exception, as the critical feedback initiated consultation rounds with the intelligence agencies and Scotland Yard (Cobain, 2018), which, however, were ultimately delayed pending the conclusion of the parliament’s ISC report (Cobain, 2018). Finally, a change of government also failed to trigger any type of policy reform, as Theresa May established early on her opposing stance towards ‘those activist, left-wing human rights lawyers’ (May, 2016), manifesting thus the small role that the torture allegations and corresponding calls for reforms played in her political agenda at that time. In sum, motions within all three streams eventually transpired, yet none proved strong enough to stipulate the respective streams’ ripening.
The opening of the problem window and the ISC report
The 2018 publication of the Intelligence and Security Committee report, however, marked an important turning point in the reform process with the introduction of the ‘Consolidated Guidance’ and the ‘Principles’ which ultimately triggered the maturing of the politics and problem streams. For four years, the ISC had been investigating torture allegations and issue areas highlighted by the preceding Gibson Inquiry (ISC, 2018a: 9), before then publishing two reports, which on the one hand covered the detainee mistreatment between 2001 and 2010, and on the other hand covered ‘current issues’ (see ISC, 2018a; ISC, 2018b). Even though the reports came with the caveat of little governmental cooperation – 19 of the 23 requested officers had been barred from the witness list (ISC, 2018a: 10) – they confirmed the UK’s collusion with the CIA (ISC, 2018a: 3) and criticised Cameron’s ‘Consolidated Guidance’ as not comprehensive enough (ISC, 2018b: 31–37).
In the end, both documents provided the government with critical and negative feedback, especially as the first report unambiguously states that ‘it is undeniable that the UK Agencies at Head Office level were aware of reports that some detainees held by the US had been mistreated’ (ISC, 2018a: 4). Although the report noted insufficient proof that British intelligence officers were directly involved in torture, it found that detainees had been verbally threatened with mistreatment, and that UK personnel had personally witnessed harmful interrogation techniques inflicted by other countries’ agencies (ISC, 2018a: 3). The ISC report concluded that the deployed staff’s lack of experience, and guidance lead to inexcusable actions, which violated international law (ISC, 2018a).
The second report focused on the shortcomings of Cameron’s ‘Consolidated Guidance’, and on whether prevailing orders were formulated clearly enough to prevent a repetition of the incidents from the early 2000s (ISC, 2018b). In this context, the ISC voiced major concerns regarding the scope of the ‘Consolidated Guidance’ as the absence of mandatory policy review processes could result in established rules remaining unenforced (p. 2). Similarly, the ISC criticised the high level of ministerial discretion for being a source of subjectivity, while disapproving of the policy’s omission of rendition processes. In conclusion, the ISC provided 11 propositions for change and a further 185 pages of closer elaboration on the topic (p. 3).
Despite media coverage and NGO campaigns, the public remained indifferent if not opposed to the ISC publication.6 Various media outlets covered the findings of the parliamentary investigation, but the lack of graphic evidence as well as the UK’s complicit rather than direct involvement in torture hampered any shaming efforts.7 Similarly, the 2017 scandal surrounding the accusation of fraud against the Iraq Historic Allegations Team had rapidly eroded public trust in comparable inquiries, and instead strengthened the public’s loyalty to the British military and intelligence services.8 This indifference if not resistance to the report, combined with the fact that 29 per cent of British people believe that ‘torture is sometimes necessary and acceptable to gain information that may protect the public’ (Amnesty International, 2014: 5), reduced significantly the likelihood of May’s administration suffering electoral losses because of the ISC reports.
Irrespective of the public mood, however, the ISC’s negative feedback still caught the government’s attention as it reiterated the importance of updating Cameron’s ‘Consolidated Guidance’ in order to prevent the UK’s international reputation from being damaged to an extent where it undermines the state’s credibility and threatens national security (ISC, 2018a). One concern pertained to the UK losing its reputation as a ‘beacon of human rights’,9 and thus, its legitimacy to act as a mediator or leading voice in international organisations or conflict settings.10 Furthermore, stakeholders within the government feared that the findings of the report might threaten the UK’s reputation as a reliable and human rights-respecting partner, which in turn, could drastically endanger any future intelligence cooperation with other countries and weaken the country’s negotiating power in future alliance-building processes.11 Last, senior politicians worried that the continued use of a publicly criticised guidance might undermine the military’s and intelligence services’ trust in the government, thereby undermining the personnel’s motivation for defending the country and its international partners.12
Furthermore, as we work to ensure that future policy is fit for purpose, it is vital to learn the lessons of the past. The Government’s continued failure to deliver an independent inquiry undermines the UK’s global reputation as a champion of human rights and the rule of law […]. It is the right thing to do, legally, morally and for British leadership in the world. (APPG on Extraordinary Rendition, 2019: 2)
In sum, the British government was not under immediate public pressure nor faced immediate threats of electoral losses after the publication of the ISC reports. Instead, concerns regarding the UK’s reputation, credibility and negotiation power on the international stage pushed the Consolidated Guidance and its pending reform to the top of the government’s problem agenda, thereby signalling the ripening of the politics and problem stream.
Stream alignment and the IPCO consultations
On the same day that the ISC published its reports, Theresa May tasked IPCO to draft an updated policy alternative of Cameron’s ‘Consolidated Guidance’ on interrogations of foreigners abroad (IPCO, 2018a: 3). As a result, IPCO initiated a public consultation process inviting representatives of civil society to submit their policy proposals. The office sent out direct invitations to ‘key stakeholders’, while also using the office’s website and Twitter account to openly extend the invitation for submission to ‘those with an interest in the area’ (IPCO, 2018a: 8). The respondents were given three months to answer 11 pre-determined questions ranging from their opinion regarding the Consolidated Guidance to the submission of specific policy proposals. Afterwards, IPCO organised an invitation-only Chatham House event in December 2018 for various NGOs, academics and government representatives to further discuss the matter from different viewpoints (IPCO, 2018b). Concurrent to these efforts of extracting already well-developed policy alternatives from the policy community, the government likewise ensured that its operational interest was taken into account, and thus drew the baseline for IPCO’s final policy recommendation. Accordingly, the government met repeatedly with IPCO and likewise responded to the survey, delineating clearly which changes it would consider feasible and which ones it would not annex (HM Government, 2018: 5 and 6).
In the end, IPCO published responses from eight NGOs, the Universities of Sheffield and Westminster, and the All-Party Parliamentary Group (APPG) on Extraordinary Rendition (IPCO, 2021a). The respondents demanded an absolute prohibition on actions, which carry real risks of torture, renditions, as well as cruel, inhumane or degrading treatment (CIDT), while also demanding the application of the Guidance to scenarios where information sharing with allies would ensue (IPCO, 2021a). Regarding the Guidance’s vague language and the many loopholes the policy provides, all respondents agreed that Cameron’s ‘Consolidated Guidance’ did not provide sufficient direction for (junior) personnel in conflict theatres (IPCO, 2021a). The most prominent points raised were the need for a clear definition of torture and CIDT, an explicit outline of the Minister’s competences, as well as detailed and comprehensive risk-assessment procedures applicable to any interrogation scenario (IPCO, 2021a; see responses to the consultation).
In contrast, the meetings between IPCO, the intelligence agencies, and the government representatives remained mostly confidential. Nevertheless, the government answered to IPCO’s questionnaire defending the ‘Consolidated Guidance’s’ scope and precision, but signalled openness to renaming the new policy and including rendition as a form of CIDT in the Annex (HM Government, 2018: 5 and 6). Regarding the extension of the ‘Consolidated Guidance’ to the cooperation with non-state actors, the government cited the MI5 claiming that such an alteration was not needed, and instead ensured that ‘as a matter of policy, the security and intelligence agencies apply the Consolidated Guidance when they know or believe that a detention will take place’ (HM Government, 2018: 5). Similar notions of wanting to retain a high level of flexibility were likewise manifested in the statement that ‘the government does not consider that the Consolidated Guidance would benefit from being set out on a statutory footing’ (HM Government, 2018: 6).
Policy adoption
After reconciling the various inputs, IPCO submitted a proposal to 10 Downing Street, which the Prime Minister accepted in full (May, 2019). Given May’s executive power and the non-statutory nature of the ‘Principles’, no further negotiation rounds nor parliamentary voting procedures were needed so that the new policy was adopted as soon as it was amended to May’s decision-agenda. As a result, several policy changes ensued: IPCO was tasked with oversight responsibilities for reports of non-compliance (May, 2019: 8), while the application of the ‘Consolidated Guidance’ was expanded to additional UK organisations working in the field of counterterrorism and to international joint units under the lead of UK bodies (May, 2019: 4 and 5). Last, two of the most salient changes pertain to the inclusion of rendition procedures to the document, and the modification from ‘serious risk’ to ‘real risk’; both two key demands submitted by civil society actors.
Despite these advancements, however, the ‘Principles’ do not offer a panacea against torture as they include key objections made by the government, and remain relatively flexible. For example, the cooperation with non-state actors is very vaguely mentioned; on occasions of collaboration the policy ‘should apply insofar as possible’ (May, 2019: 5). Likewise, other parts of the ‘Principles’ remain vague: reports of non-compliance should be submitted ‘as soon as reasonably practicable’ (May, 2019: 8), and in cases of time-sensitive conditions, ‘all personnel should continue to observe this guidance insofar as practical’ (May, 2019: 7). The government retained a significant amount of leeway; in cases of a ‘real risk’ of torture, CIDT, or rendition, ministers should be consulted, but authorisations were not restricted despite such concerns (May, 2019: 6). Nonetheless, despite all these shortcomings, the ‘Principles’ still constitute an important advancement compared to the ‘Consolidated Guidance’, especially given its inclusion of rendition and the establishment of further oversight responsibilities.
Discussion
In the light of the policymaking process behind the ‘Principles’, the following section explores and discusses the incongruities between the empirical findings and current MSF literature. In doing so, the article exhibits the limitations of recent theoretical assumptions regarding consequential coupling procedures and subsequently refines Herweg et al’s (2015) hypothesis (H1) to also account for international influences on the opening of problem windows. In a next step, the discussion turns towards Brexit and studies the effects which the event has had on the development of the ‘Principles’, before then further exploring May’s active involvement in creating a platform for policy-selling efforts.
When looking at the impact of the ISC reports on May’s policy prioritisation, the adherences to the consequential coupling logic becomes apparent, even though contrary to Herweg et al’s assumption the problem window did not open because of electoral pressures, but rather because of concerns regarding the UK’s reputation on the international stage. The ISC reports clearly stated that without policy change the UK’s reputation and credibility would long lastingly be damaged and thwart the state’s influence on global governance structures (ISC 2018a; 2018b). Now, following Herweg et al’s (2015: 437) general logic of politicians being inherently interested in securing their own political position and influence, who is to say that such interests are only limited to the domestic realm? Whether it is having a direct influence on how international law is determined or having the capacity to promote and enforce it abroad, politicians both as individuals and representatives of the state have a compelling interest in maintaining their country’s access to the international negotiation table. If the country as a whole is being sidelined by other state actors in diplomacy and cooperation processes then this decrease in state power will directly translate into a decrease of the leading politicians’ individual power – without access to the negotiation table, the politician’s voice will most likely remain unheard.
Building on these inferences, the article proposes a refined hypothesis for the opening of problem windows, which can capture how domestic as well as international issue perceptions can affect the politicians’ basic preference of power retention and thus motivate them to adapt their problem agenda accordingly:
The more a condition puts the policymakers’ influence on negotiations and general decision-making processes at risk, the more likely it is to open a policy window in the problem stream (H2).
In sum, this hypothesis argues that an issue passes the threshold of opening a problem window when one or more politicians fear to forfeit their say in negotiating generally binding decisions – regardless of whether these decisions are being made on the domestic or the international stage. Hence, if applied to the domestic realm, this risk ensues if the politicians’ re-election and thus their political position is endangered (see Herweg et al, 2015); in the international realm, however, the risk of losing their say emerges if their personal reputation or the reputation of the state as a whole is damaged. Such a loss of credibility could restrict the politicians’ access to international negotiation rounds or, for instance, impede their ability to hold other states accountable.
In this context, the making of the ‘Principles’ also reveals another phenomenon as during the drafting process, the public mood and the international requirements did seem to oppose each other or at least indicated differing preferences; a conundrum which was mitigated by the side effects of another, at that time prevailing, focusing event: Brexit. The UK leaving the European Union had two major effects on British policymaking processes; on the one hand the abrupt termination of the almost 50-year long alliance with its European partners made the UK ever more dependent on its international reputation as new partnerships had to be negotiated, while simultaneously trying to limit diplomatic damages with the European neighbours. On the other hand, Brexit took all the oxygen out of other political debates, keeping the public distracted from other events on the political stage and thus enabling the government to tacitly pass policy reforms, which were considered as important, but potentially unfavourably viewed by the electorate. Hence, even though Brexit per se was not directly related to the topic of extraterritorial interrogations, it still increased the relevance of impending reputational damages, while providing the decision-makers with sufficient leeway to pursue contentious policy reforms.
In a similar fashion, May’s proactive commissioning of IPCO and the subsequent creation of a platform for policy-selling efforts reflects a part of consequential coupling that is sometimes featured in MSF literature (see Zohlnhöfer, 2016: 97), but not often discussed. One of the basic principles of MSF alludes to the fact that due to the principles of ambiguity and bounded rationality decision-makers have to rely on consultants to obtain feasible policy options when a problem appears (Jones, 2003: 396). In this context, however, most scholars, ascribe a rather passive role to the decision-makers, while the policy entrepreneurs are being portrayed as taking advantage of the politicians’ dependency by strategically selling their proposals via framing, moral persuasion, or other approaches (Ackrill and Kay, 2011; Goyal et al, 2020). Yet, in the case of the ‘Principles’, May took a proactive stance when deliberately ‘outsourcing’ the policy drafting process to IPCO – not to bury the problems in a lengthy bureaucratic process, but to actually facilitate a government-friendly policy reform. Hence, instead of remaining dependent on the policy entrepreneurs’ pre-drafted proposals, May appointed a third party, which officially is listed as independent, and yet often described as closely attached to the government.13 Consequently, by getting actively, although indirectly, involved in the solution-finding process, May avoided any potential electoral pushbacks by diminishing her role in the procedures and by shifting the drafting responsibility towards IPCO; a political move which, given the Commission’s expertise, also increased the new policy’s legitimacy. What is more important, however, is that by assigning the task to IPCO, May could pre-empt the appointment of a less government-friendly commission or policy entrepreneur, which ultimately enabled her to address the international predicaments, while safeguarding the consideration of the government’s operational interests in the new policy draft (IPCO, 2021a).
Conclusion
This article has refined Herweg et al’s (2015) hypothesis on the opening of problem windows by exploring the making of the British ‘Principles’, which ensued because of consequential coupling procedures, but in the absence of electoral pressures. In doing so, the research demonstrated that the parliament’s negative feedback did not provoke discontent among the British public, but rather raised significant concerns regarding the state’s reputation and credibility on the international stage, which opened the corresponding problem window. Being concerned about losing further political power and access to international negotiation tables, Teresa May eventually tasked IPCO with policy finding procedures, thereby securing not only the expertise of respective policy entrepreneurs, but also a drafting process within the framework of the government’s operational interests. As this development did not fit into the hypothesised casual mechanisms outlined by MSF, the study engaged in theory-building process-tracing to present a further refined hypothesis on when a condition passes the threshold of a problem window; an adjustment particularly important when wanting to apply MSF to foreign policymaking processes:
The more a condition puts the policymakers’ influence on negotiations and general decision-making processes at risk, the more likely it is to open a policy window in the problem stream (H2).
Given the article’s reliance on a single-case study, it provides more detailed insights, though until further cross-case studies are done, the generalisability of the findings may be limited. Nevertheless, it can be assumed that the events described in the hypothesis can also occur in other policy fields, as the risk of international reputational damages is not necessarily unique to the area of human rights and counterterrorism. In the light of these considerations, future avenues for research comprise of both theoretical as well as empirical possibilities. Regarding the latter, comparative studies focusing on the emergence of other countries’ extraterritorial human rights safeguards could provide further information about respective decision-making processes as well as their causes, conditions, developments and outcomes. To that end, a selection of the most different cases, including non-western states or non-democratic countries could shed further light on a potential common denominator, which elicits states to recognise extraterritorial human rights obligations. A mix of typical and deviant cases, in turn, could offer details about possible thresholds of recognition. Conversely, theory-focused studies could test the hypothesis in a larger number of cases, thus engaging in large-scale theory-testing via a qualitative comparative analysis, or an outward snowballing strategy.
This work was supported by the German Academic Exchange Service under Grant 57504619.
Notes
‘Principles relating to the detention and interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees’ (henceforth ‘Principles’).
Independent oversight body of the British intelligence agencies (IPCO, 2021b).
In the context of MSF, negative feedback is provided by internal or external actors to the government, and refers to among others, discrepancies between the implementation and the original policy intent, a failure in meeting the stated goal, unexpectedly high costs, or unanticipated consequences (Zohlnhöfer et al, 2016: 255; Kingdon, 1984: 102ff).
Consolidated Guidance to intelligence officers and service personnel on the detention and interviewing of detainees overseas, and on the passing and receipt of intelligence relating to detainees; henceforth referred to as ‘Consolidated Guidance’.
Interview 3 with former General Counsel for the Equality and Human Rights Commission, London 17/02/2020.
Interview 4 with former Reader in Foreign Policy and International Relations University of Birmingham, Birmingham 05/03/2020.
Interview 1 with Senior Member UK National Preventive Mechanism, London 11/02/2020.
Interview 1
Interview 5 with a senior scholar of the University of Westminster, London 14/02/2020.
Interview 6 with member of the United Nations Subcommittee for the Prevention of Torture, London 25/02/2020.
Interview 7 with former UK Security and Intelligence Coordinator for the Prime Minister, London 04/03/2020.
Interview 8 with the former Attorney General for England and Wales, London 27/04/2020.
Interview 5 with a senior scholar of the University of Westminster, London 14/02/2020.
Conflict of interest
The author declares that there is no conflict of interest.
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