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  2. Abstract

The attacks of 11 September 2001 and the reaction to them has been the gravest challenge to date to the Human Rights Act 1998. The Antiterrorism, Crime and Security Act 2001 has expanded the remit of the Terrorism Act 2000 and there has been a new concentration on antiterrorism by government. This article assesses the impact of human rights law on the debate about liberty and security following 11 September. It considers how the provisions of the Human Rights Act have influenced the formulation and interpretation of anti-terrorism laws, and examines the role of the judiciary in adjudicating on disputes between the individual and the state. It ends with some general discussion about the security-driven challenges to human rights that lie ahead.

  1. 1 See, for the debates on the Bill in Parliament where its rationale is discussed and explained, J. Cooper and A. Marshall-Williams, (eds.), Legislating for Human Rights. The Parliamentary Debates on the Human Rights Bill (2000).

  2. 2 For an anticipation of the kind of problems that human rights was likely to encounter as a result of these structural weaknesses, see M. Koskenniemi, ‘The Effect of Rights on Political Culture’ in The EU and Human Rights, ed. P. Alston (1999) ch. 2.

  3. 3 See G. Kepel, The War for Muslim Minds. Islam and the West (2004).

  4. 4 For an excellent survey, see G. Oberleitner, ‘Human Security: A Challenge to International Law?’ (2005) 11 Global Governance.

  5. 5 Kepel, op. cit., n. 3, ch. 2.

  6. 6 Epitomized by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act 2001 (the USA Patriot Act).

  7. 7 With more despairingly critical articles like that of K.D. Ewing, ‘The Futility of the Human Rights Act’ [2004] Public Law 829.

  8. 8 See L.K. Donohue, Counter-terrorist Law and Emergency Powers in the United Kingdom, 1922–2000 (2000); C. Walker, The Prevention of Terrorism in British Law (1992, 2nd edn.). For a current survey, see C. Walker, Blackstone's Guide to the Anti-terrorism Legislation (2002).

  9. 9 For example, Brannigan and McBride v. United Kingdom (1993) 17 E.H.R.R. 539.

  10. 10 Ireland v. United Kingdom (1978) 2 E.H.R.R. 25.

  11. 11 See C.A. Gearty, ‘The United Kingdom’ in European Civil Liberties and the European Convention on Human Rights. A Comparative Study, ed. C.A. Gearty (1997). A. Tomkins, ‘Civil Liberties in the Council of Europe: A Critical Survey’ in the same volume contains much useful historical information on the role of the Committee of Ministers.

  12. 12 See K.D. Ewing and C.A. Gearty, Freedom under Thatcher. Civil Liberties in Modern Britain (1990); C.A. Gearty, ‘The Cost of Human Rights: English Judges and the Northern Irish Troubles’ (1994) 37 Current Legal Problems 19.

  13. 13 Home Office and Northern Ireland Office, Legislation against Terrorism. A Consultation Paper (1998; Cm. 4178).

  14. 14 Inquiry into Legislation Against Terrorism (1996; Cm. 3420; Chair, Lord Lloyd of Berwick).

  15. 15 Home Office, op. cit., n. 13, para. 4.17.

  16. 16 id., para. 3.17.

  17. 17 Human Rights Act 1998 (HRA), sched. 1, art. 11.

  18. 18 United Communist Party of Turkey v. Turkey (1998) 26 E.H.R.R. 121; Socialist Party v. Turkey (1998) 27 E.H.R.R. 51.

  19. 19 HRA, s. 2.

  20. 20 Home Office, op. cit., n. 13, ch. 8.

  21. 21 Terrorism Act 2000, ss. 40 and 41, reacting to Brogan v. United Kingdom (1988) 11 E.H.R.R. 117.

  22. 22 id., ss. 54–64.

  23. 23 HRA, sched. 1, art. 11(2). So in R v. Hundal and Dhaliwal [2004] E.W.C.A. Crim. 389 the unsuccessful challenge to convictions under s. 11 that was mounted in the Court of Appeal did not even seek to rely on art. 11.

  24. 24 Interestingly, the one power entirely removed from the range of terrorism laws by the new Labour Government was the power of exclusion which did not in itself raise human rights problems under the Convention, at least in relation to those provisions to which the United Kingdom was committed in international law.

  25. 25 Human Rights Act 1998 (Commencement) Order 1998 (S.I. no. 1998/2882).

  26. 26 J. Wadham, H. Mountfield, and A. Edmundson, Blackstone's Guide to the Human Rights Act 1998 (2003, 3rd edn.) 10.

  27. 27 See, generally, P.A. Thomas, ‘September 11th and Good Governance’ (2002) 53 N. Ire. Legal Q. 366.

  28. 28 Anti-terrorism, Crime and Security Bill 2001, part 3.

  29. 29 id., part 8.

  30. 30 id., part 9.

  31. 31 id., part 11.

  32. 32 id., part 10.

  33. 33 id., ss. 111–112.

  34. 34 See Joint Committee on Human Rights (JCHR), Second Report, Anti-terrorism, Crime and Security Bill HL (2001–2002) 37, HC (2001–2002) 372; JCHR, Fifth Report, Anti-terrorism, Crime and Security Bill: Further Report HL (2001–2002) 51, HC (2001–2002) 420.

  35. 35 id., Second Report, para. 12.

  36. 36 Home Affairs Committee, First Report, The Anti-terrorism, Crime and Security Bill 2001 HC (2001–2002) 351, paras. 56–61.

  37. 37H. Fenwick, ‘The Anti-terrorism, Crime and Security Act 2001: A Proportionate Response to 11th September?’ (2002) 65 Modern Law Rev. 724.DOI: 10.1111/1468-2230.00405

  38. 38 Space does not permit a close textual analysis of the Convention by way of support for the assertions in the text: see arts. 8(2), 10(2), and 11(2) and also the case law on art. 14. See, further, Fenwick, id.

  39. 39 Anti-terrorism, Crime and Security Act 2001, s. 21(1).

  40. 40 id., s. 21(2)–(5). There is a good critique of the definition in Walker, op. cit. (2002), n. 8, pp. 20–30.

  41. 41 2001 Act, id., ss. 22, 23.

  42. 42 The powers have been renewed: The Anti-terrorism, Crime and Security Act 2001 (Continuance in Force of Sections 21–23) Order 2004 (S.I. no. 2004/751).

  43. 43 Home Office, Counter-Terrorism Powers: Reconciling Security and Liberty in an Open Society: A Discussion Paper (2004; Cm. 6147). Table One sets out the details. Two of the seventeen have chosen to leave the country and one of the group has been certified but is being held under other powers. Note that bail is available and that conditional bail has been granted to one detainee: G v. Secretary of State for the Home Department [2004] E.W.C.A. Civ. 265.

  44. 44 See, generally, 2001 Act, ss. 24–29. It follows that to describe the situation in Britain as amounting to a mini-Guantánamo is a reckless misuse of language, making it impossible – were such a system to be introduced here – to call it by its proper name. For the very different position in the United States, see D. Rose, Guantaánamo: America's War on Human Rights (2004); ‘How US Rewrote Terror Law in Secrecy’ International Herald Tribune, 25 October 2004, 1, 4, and 26 October 2004, 2. For a good summary of the legal position in both United Kingdom and United States, see P. Thomas, ‘Emergency and Anti-Terrorist Powers: 9/11: USA and UK’ (2003) 26 Fordham International Law J. 1193.

  45. 45 See, most recently, Home Office, op. cit., n. 43, paras. 21–41.

  46. 46 Soering v. United Kingdom (1989) 11 E.H.R.R. 439; Chahal v. United Kingdom (1996) 23 E.H.R.R. 413. In the United Kingdom, the leading authority is now R (Ullah) v. Special Adjudicator: Thi Lien Do v. Secretary of State for the Home Department [2004] U.K.H.L. 26; [2004] 3 All E.R. 785. The ‘gap’ only arises where it is not possible to detain such individuals by pressing charges under domestic criminal law.

  47. 47 Human Rights Act 1998 (Designated Derogation) Order 2001 (S.I. no. 2001/3644). United Kingdom anti-terrorism law had led to earlier derogations despite the then absence of any domestically enforceable rights’ instrument: see Donohue, op. cit., n. 8, pp. 345–52. See, also, C.A. Gearty and J.A. Kimbell, Terrorism and the Rule of Law. A Report on the Laws Relating to Political Violence in Great Britain and Northern Ireland (1995).

  48. 48 For the record during the First and Second World Wars, see K.D. Ewing and C.A. Gearty, The Struggle for Civil Liberties. Political Freedom and the Rule of Law in Britain, 1914–1945 (2000) chs. 2 and 8.

  49. 49 See T. Blair, ‘The Threat of Global Terrorism’, speech in Sedgefield, 5 March 2004. For a revealing insight into the Prime Minister's approach to the implications of the extra-territorial reach of the European Convention where the removal of non-nationals to other countries is concerned, see Youssef v. Home Office [2004] E.W.H.C. 1884 (Q.B.).

  50. 50 The lead Strasbourg authority is Brannigan and McBride, op. cit., n. 9; see, generally, C. Warbrick, ‘The Principles of the European Convention on Human Rights and the Response of States to Terrorism’ [2002] E.H.R.L.R. 287. It is true that the judicial oversight may be deferential, but that is not the same as saying it is non-existent. For how the British judges have actually approached this task, see A (FC) and others (FC) v. Secretary of State for the Home Department; X (FC) and another (FC) v. Secretary of State for the Home Department [2004] U.K.H.L. 56, overturning (in part) A v. Secretary of State for the Home Department SIAC 30 July 2002; [2002] E.W.C.A. Civ. 1502, [2003] 1 All E.R. 816.

  51. 51 C. Harlow and R. Rawlings, Law and Administration (1984).

  52. 52 A (FC) and others (FC), op. cit., n. 50.

  53. 53D. Nicol, ‘The Human Rights Act and the Politicians’ (2004) 24 Legal Studies 451.

  54. 54 See nn. 34 and 36 above.

  55. 55 See E. Metcalfe, ‘Necessity and Detention: Internment under the Anti-terrorism, Crime and Security Act 2001’ (2004) 1 Justice J. 36; Liberty, Recognising Security and Liberty in an Open Society (2004); Fenwick, op. cit., n. 37.

  56. 56 Privy Counsellor Review Committee, Anti-Terrorism, Crime and Security Act 2001 Review: Report HC (2003–2004) 100.

  57. 57 JCHR, Sixth Report, Anti-terrorism, Crime and Security Act 2001: Statutory Review and Continuance of Part 4 HL (2003–2004) 38, HC (2003–2004) 381.

  58. 58 Lord Carlile of Berriew QC, Anti-terrorism, Crime and Security Act 2001, Part IV Section 28 Review 2003 (2004).

  59. 59J. Waldron, ‘Security and Liberty: The Image of Balance’ (2003) 11 J. of Political Philosophy 191.

  60. 60C.A. Gearty, ‘Reflections on Civil Liberties in an Age of Counter-Terrorism’ (2003) 41 Osgoode Hall Law J. 185.

  61. 61 HRA, s. 3(1).

  62. 62 J. Rawls, A Theory of Justice (1999, revised edn.); S. Lukes, ‘Five Fables about Human Rights’ in On Human Rights, eds. S. Shute and S. Hurley (1993).

  63. 63 Ewing, op. cit., n. 7 goes into the record in great detail, and sets it in its political and legal context. For the Lords’ decision, see op. cit., n. 50.

  64. 64 Attorney General's Reference (No 4 of 2002) [2004] U.K.H.L. 44 [burden of proof in Terrorism Act 2000 s. 11 prosecutions]; M v. Secretary of State for the Home Department [2004] E.W.C.A. Civ. 324 [Special Immigration Appeals Commission (SIAC) correct not to regard suspicious circumstances as the same as reasonable suspicion for the purposes of the exercise of the detention power under Part 4 of the Anti-terrorism, Crime and Security Act 2001]; G, op. cit., n. 43. Note, however, that the first case is a rather traditional one on the burden of proof, a topic on which judges have always taken a keen interest, and that each of the latter two cases involved the court of appeal in supporting judgments in favour of detainees which had already been made by SIAC.

  65. 65 Rankin v. Prosecutor Fiscal, Ayr High Court of Justiciary, 1 June 2004, involving a prosecution for wearing items indicative of support for a proscribed organization. No human rights point appears to have been made in the case.

  66. 66 Secretary of State for the Home Department v. Rehman [2001] U.K.H.L. 47, [2002] 1 A.C. 153, para. [62]. The specific question before the lords related to whether support for terrorist activities in a foreign country constituted a threat to national security, but Lord Hoffmann's remarks can clearly be read more generally than this.

  67. 67 id.

  68. 68 id.

  69. 69 See n. 50 above. This is one of the cases that has been argued on appeal to the House of Lords.

  70. 70 [2002] E.W.C.A. Civ. 1502, para. [44].

  71. 71 Note that SIAC had originally also ruled the detention power to be in breach of Article 14 viewed with Article 5, but that this decision had been overruled by the Court of Appeal: op. cit., n. 50.

  72. 72 Brooke and Chadwick LJJ.

  73. 73 See, for example, Ewing, op. cit., n. 7.

  74. 74 On this point see, generally, C.A. Gearty, Principles of Human Rights Adjudication (2004) ch. 5.

  75. 75 [2004] E.W.C.A. Civ. 1067.

  76. 76 id., para. [33] per Woolf LCJ giving the judgment of the Court.

  77. 77 id., paras. [37]–[46].

  78. 78 id., para. [51].

  79. 79 See id., paras. [54] and [56].

  80. 80 The full citation is A, B, C, D, E, F, G, H, Abu Rideh and Ajouaou v Secretary of State for the Home Department [2004] E.W.C.A. Civ. 1123.

  81. 81 See the leading article, ‘Tortured Logic’, in the Guardian, 12 August 2004; M. Evans, ‘The Blind Eye of the Law’ Guardian, 14 August 2004. Note that the Court was divided on the point, with Pill and Laws LJJ forming the majority and Neuberger LJ dissenting. An excellent but more general critique is J. Jowell, ‘Beware the tools of tyranny’ Guardian, 28 October 2004.

  82. 82 See A. Lewis, ‘Making Torture Legal’ New York Review of Books, 15 July 2004, 4–8.

  83. 83 The word used by White House counsel Alberto Gonzales to describe the Geneva Conventions which ought to regulate the treatment of prisoners in wartime: see Lewis, id., p. 4. For critical perspectives on the United States position, see M. Welch, ‘Trampling Human Rights in the War on Terror: Implications to the Sociology of Denial’ (2003) 12 Critical Criminology 1DOI: 10.1023/B:CRIT.0000024444.09103.d4; P. Chevigny, ‘Repression in the United States after the September 11 Attack’ (2004) 1 SUR – International J. on Human Rights 143.

  84. 84 Home Office, op. cit., n. 43.

  85. 85 See (all from the Guardian) ‘Surveillance led to terror arrests’, 5 August 2004; ‘Terror plot suspects face charges’, 18 August 2004; ‘Terror suspects in court’, 26 August 2004; ‘Abu Hamza charged with inciting murder’, 20 October 2004.

  86. 86 Liberty, op. cit., n. 55, especially ch. 7.

  87. 87 JCHR, op. cit., n. 57.

  88. 88 Guidelines on Human Rights and the Fight against Terrorism (Council of Europe, 11 July 2002) (2002) 57 Human Rights Information Bull. 40; .

  89. 89 See D. Bonner, ‘Managing Terrorism while Respecting Human Rights? European Aspects of the Anti-terrorism, Crime and Security Act’ (2002) 8 European Public Law 497. See, for update of EU developments,

  90. 90 ‘Anti-terror measures “alienate Muslims”’ Guardian, 21 September 2004.