The Government's strategy to counter the threat of terrorism has led to the erosion of the balance needed to reconcile personal liberty and national security
On 11 September 2001 terrorist attacks in New York, Washington, D.C. and Pennsylvania resulted in several thousand deaths, including victims from some 70 countries around the world. The United Nations Security Council condemned such violence declaring that the attacks were a threat to international peace and security. In its Resolution 1373 (2001), the Security Council, acting under Chapter VII of the United Nations Charter, asked all States to take measures to prevent the commission of terrorist attacks, including denying safe haven to those who finance, plan, support or commit terrorist attacks. In response, many Governments answered the United Nations request by enacting legislation to assist in the fight against terrorism and to prevent further attacks similar to September 11, 2001. In this regard, the United Kingdom Government introduced the Anti-terrorism, Crime and Security Act into Parliament on November 12. The measure, however, was not the first comprehensive anti-terror measure in the history of the United Kingdom but merely another milestone in a somewhat admirable list of anti-terror legislation.
2A brief history of anti-terror measures
The United Kingdom has had quite a considerable amount of experience in relation to terrorism. This factor is largely due to two reasons. The first is historical and relates to the bygone era of the British Empire whereby anti-colonial campaigns of political violence were experienced in Palestine, Kenya, Malaysia, Cyprus and Aden. The cumulative experience has shaped a significant part of British antiterrorist policy-making in areas such as special powers, interrogation techniques, police and military relations.
The second element of experience arises from the campaigns in Ireland against its incorporation within a predominantly British State over a period of more than three centuries. The approach adopted to deal with these threats was patently militaristic as exemplified by the Civil Authorities (Special Powers) Acts (Northern Ireland) 1922. However, the emphasis upon a military strategy was objectionable in the light of the internment without trial, the inhuman treatment of detainees and lethal confrontations such as Bloody Sunday in 1972. Therefore, in line with the assumption of responsibility by the UK Government pursuant to ‘Direct Rule’ after March 1972, a review report undertaken by Lord Diplock formed the basis for the wide-ranging Northern Ireland (Emergency Provisions) Acts 1973-98. This code included special criminal processes (including non-jury trials), a host of special policing powers and internment without trial. The Criminal Justice (Terrorism and Conspiracy) Act 1998 likewise was the response to the political violence orchestrated by Republican dissidents under the banner of ‘the Real IRA’ who perpetrated the Omagh bombing in August 1998.
By the end of the 1990s, these anti-terrorist laws had become a permanent feature of the legal landscape, not only because of the continuation of Irish terrorism but also because, during the 1980s, the Prevention of Terrorism Acts were extended following a report by Lord Jellicoe in 1983 to encompass terrorism from international sources. However, two factors have since triggered a major reorientation. The first was the calling of a ceasefire by the Provisional IRA, later replicated by most other Irish terrorist groups. The ceasefire was first called in 1994, broke down in 1996 but was reasserted since July 20, 1997. One of the implications for counter-terrorism laws was to call into question the derogation under Art.15 of the European Convention issued in December 1988 concerning powers of police detention. There was also a political impetus towards an inspection of the legislation and security matters more generally, including the decommissioning of terrorist weapons, given in the Belfast Agreement signed on Good Friday 1998.
However, Irish terrorism is considered to remain a substantial threat, even if outright conflict has been replaced by a somewhat milder version involving punishment attacks, logistical preparations and pervasive racketeering as exemplified by the recent Belfast bank heist.
3The new anti-terrorism laws and their impact on civil liberties
AThe new measures: A brief introduction
As a result of the developments described above a general review of counter-terrorism laws was published in 1996 by Lord Lloyd assisted by Mr Justice Kerr. The government’s response resulted in the promulgation of the Terrorism Act 2000, which came permanently into force in February 2001 with the exception of various special powers for Northern Ireland under Pt VII and allowed the removal of the derogation notice made in relation to the European Convention on Human Rights.
The Act provides a substantial code of measures for Britain and Northern Ireland and therefore deals with Irish, international and domestic terrorism. The new definition of ‘terrorism’ which allows this extended purview is set out in s.1 of the Terrorism Act:
(1) In this Act ‘terrorism’ means the use or threat of action where--
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it--
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
The three limbs of s.1(1) are intentionally broad, since the definition serves as the platform for investigative police powers where there must be some margin of error. It is conversely not a term on which a criminal offence is based. Overall, it is submitted that the changes in the terms of the definition are not, with one exception, tremendously significant. That exception relates to the inclusion of s.1(2)(e), which is designed to take account of cyber-terrorism. Rather, it is the manner in which it is then applied later in the Terrorism Act which is remarkable.
In this regard, it should be noted that the scope of the definition has been extrapolated from its historical grounding in the Irishconflict and so raises the possibility of the disproportionate use of draconian provisions in circumstances where ordinary policing and laws could cope with isolated or incompetent terrorists. Neither aspect is very satisfactory. In terms of definition, relevant measures should instead be designed around a combination of the types of seriously threatening and destabilising offences being perpetrated; and, in terms of scope, what is important is the nature of the collectives that carry them out and that render less capable normal criminal justice processes. In this way, the emphasis should be upon severe and collective political violence, rather than terrorism per se.
The second recent addition to the United Kingdom’s legislative anti-terror arsenal, is the Anti-terrorism, Crime and Security Act 2001, which is directly related to the events of September 11, 2001 which we discussed in the introduction to this essay. As well as the fact that around 100 British citizens died in New York, the further legislation is explained by three motivations. Firstly, there is growing awareness that the threat of terrorism is changing and that even recent reviews had failed to capture adequately some of the trends. The nature and scale of the attacks on September 11, 2001 by al Qa’ida suggested that terrorism had evolved into a different, more deadly strain, characterised by a multifaceted threat, unbounded by instrument, organisation or location, and motivated by religious and cultural ideals rather than rooted in nationalist or political ideology.
Secondly, it was realised in the United Kingdom even before September 11, 2001 that a new threat was emerging, and so al Qa’ida was legally banned in February 2001. Nevertheless, this legal ban betrays a second motivation for further action-the apprehension that al Qa’ida related activities had been occurring within the United Kingdom for some years without the security officials getting to know about it. Out of the 19 hijackers, 11 had links with the United Kingdom.
The third reason for action was a more generalised concern to increase security and to reassure the public. The trend next represents part of a fundamental switch away from reactive policing of incidents to proactive policing and management of the terrorist risk.
The latest addition to anti-terrorist legislation is the Prevention of Terrorism Bill 2005. This Bill enables the Home Secretary to impose any obligation on an individual for purposes connected with preventing or restricting terrorism-related activity. The control orders under the Bill address a variety of issues from mild restrictions such as restricting the possession of articles or substances or the type of work the individual may pursue, and severe restrictions on liberty such as house arrest. Control orders are applied by the Secretary of State will be applied if he has reasonable grounds for suspecting that the individual is involved in terrorist-related activity or if the Home Secretary considers that it is necessary for purposes connected with protection the public from the risk of terrorism.
However, laudable as these measures have been in dealing with security threats against the United Kingdom, there has been concern as regards their impact on the protection of civil liberties. In the next section, we explore how anti-terrorism legislation has impacted on the balance between maintaining security and observing citizens human rights.
BThe impact of anti-terrorism measures on civil liberties
The Government’s official summary when it introduced the Anti-terrorism, Crime and Security Bill in Parliament blandly asserted that its provisions are ‘compatible with the European Convention on Human Rights but the Government finds it necessary to derogate from Article 5(1) of the Convention in respect of the detention powers in the Act’. Notwithstanding widespread criticism for example, on 13 November 2001, John Wadham, Director of Liberty, described the Bill as ‘generally alarming and ill-conceived’ - the Government assessment of formal compatibility might well have been correct. Several aspects of the Act do, however, at least raise issues that do not sit comfortably with the European Convention on Human
Rights issues and below I identify and discuss briefly on some of these.
CPowers to detain suspected terrorists
The detention powers, as respects which the Government considers derogation necessary, are the obvious place to start. Those powers are part of the regime set out in Part 4 of the 2001 Act, which deals with immigration and asylum prompting Mr Wadham of Liberty to assert that ‘the Government [could] only get away with it because they're using it against foreigners’). By virtue of section 21, the Secretary of State is permitted to issue a certificate in respect of a person if he (a) believes that the person’s presence in the UK is a threat to national security and (b) suspects that the person is an international terrorist.
The effect of such certification is to confer upon the person concerned the somewhat unattractive status of ‘suspected international terrorist’ and section 23 permits his detention, broadly in connection with his removal from the UK, even though unresolved legal argument or practical considerations prevent his removal from the UK indefinitely. Under section 24, the suspected terrorist may get bail as was the case with the Belmarsh ten but then the conditions were so stringent that they may as well be under imprisonment albeit at home. The effect of the Prevention of Terrorism Bill is to broadly continue the operation of these measures.
Detention of a person against whom action is being taken with a view to deportation is in fact permitted by Article 5(1)(f) of the European Convention. In Caprino v United Kingdom, the European Commission held that such detention is reviewable under Article 5(4), which provides that ‘everyone who is deprived of his liberty shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’. Sections 25 and 26 provide for appeals and reviews of certification as a suspected international terrorist and the Special Immigration Appeals Commission is given exclusive jurisdiction to deal with these matters. This is plainly intended to meet the requirements of Article 5(4); but the fact that the Act contemplates indefinite periods of time during which deportation proceedings will make no progress necessitated a derogation. In Chahal v United Kingdom, the Court held that deprivation of liberty under Article 5(1)(f) will be justified only for so long as deportation proceedings are in progress and that if such proceedings are not prosecuted with due diligence the detention will cease to be permissible. If the effect of this decision is not reversed, the Government will face serious difficulties in upholding the legality of indefinite detentions envisaged under the Act.
Derogations are permitted in terms of Article 15(1) ECHR, which provides that:
In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
It was held in Brannigan and McBride v United Kingdom that it falls to each Contracting State, with its responsibility for ‘the life of [its] nation’, to determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency. The Court noted that ‘by reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it’. Accordingly, it concluded, a wide margin of appreciation should be left to the national authorities. That said, the Court went on to say that Contracting Parties do not enjoy an unlimited power of appreciation and that it is for the Court to rule on whether the States have gone beyond the ‘extent strictly required by the exigencies’ of the crisis. In doing this, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation.
DPowers to interfere with private information
A series of sections in the 200l Act provide for access to information which would otherwise be treated as private. The most significant of these is probably section 3 and Schedule 2 paragraph 1(2), which introduces a new s 38A and Schedule 6A into the Terrorism Act 2000. These provisions are based on part of the Proceeds of Crime Bill and create what are called ‘account monitoring orders’. An account monitoring order is an order that a financial institution must provide information about an account. For example, the bank may be obliged to divulge details of all transactions passing through the account during an ongoing period, not exceeding 90 days. The information would normally be provided in the form of a bank statement. The order may be made by a circuit judge in England and Wales, a sheriff in Scotland and a Crown Court judge in Northern Ireland.
It was in Hewitt and Harman v United Kingdom, that the European Commission made it clear that gathering information about an individual will engage the Article 8 right to respect for the private life and constitute an interference with that right. By Article 8(2), any such interference must be in accordance with law, necessary in a democratic society and in pursuit of one of the objectives specified in the Article. The new Schedule 6A to the 2000 Act is clearly intended to provide the framework of law which this demands and necessity, which includes proportionality, will be one of the matters which the judge will require to consider in deciding whether or not to make the order. Failure to do so would put that judge in breach of s 6(1) of the Human Rights Act 1998. The objectives specified in Article 8(2) include national security.
Interesting questions might, however, arise about the manner by which Article 13 is to be satisfied in relation to such orders. That Article, it will be recalled, requires a right to an effective remedy before a national authority for any violation of the Convention rights. It contemplates both consideration of the substance of a complaint of a breach of a right and also the grant of appropriate relief. As is well recognised, the Convention seeks to guarantee rights that are practical and effective. Paragraph 4 of the proposed Schedule 6A permits an application to the court for the variation or discharge of an account monitoring order at the instance not only of the applicant for the order but also of any person affected by the order. This category clearly includes both the financial institution in question and the person whose account is subject to such action; but one question which has not yet been answered is how this possibility interacts with the tipping off offence. Section 39 of the 2000 Act makes it an offence to make a disclosure which is likely to prejudice an investigation and it is easy to imagine that an intimation by a bank to its customer that his account is being monitored would do precisely that. One should, therefore, not expect that banks would tell their customers of the making of such orders. That being so, this remedy is unlikely to be of much use to account holders and might, therefore, be capable of being criticised as impractical and ineffective. Similar questions could, of course, be raised about many forms of covert surveillance.
Whether the wide ranging measures outlined above will prove to be effective in the fight against terrorism remains to be seen. What is certain is that the price of justice is changing and the protections for the privacy and property rights of the citizen are changing with it; not just in relation to terrorism, but for all criminal investigations. The powers of disclosure of information provided in Part 3 of the 2001Act, relating as they do to all criminal offences, gives rise to serious questions of accountability. There is no mechanism for individuals or organisations to obtain information about any disclosure made which could cause substantial reputational and commercial damage both domestically and overseas. The disclosure powers are extremely wide ranging in that disclosure can be made merely for the purpose of determining whether criminal investigation should be initiated. Existing powers to obtain information by means of mutual assistance in criminal matters are limited to those cases where an investigation has already begun.
Similar problems are bound to arise in relation to what is expected to be a dramatic increase in the reporting of suspicious transactions as a result of the introduction of a criminal offence of failure to report based on negligence. Reports in relation to suspicions of terrorist financing offences are likely to be focused on those individuals and organisations from or connected to a particular group identified in international black lists. In time, evidence of discrimination may emerge both by public authorities and by private bodies. In the meantime, individuals may find that their personal liberty or property rights are threatened either here or overseas due to the existence of a confidential suspicious transaction report or other information from, for example an overseas bank, which may be without foundation. There is no right of access to such information and no right to challenge the fact that a report has been made against you. All these do not sit well with the scheme of protections provided by the European Convention on Human Rights.
EThe impact of the European measures of cooperation
Finally, one should note Part 13 of the 2001 Act, which by section 109 permits an authorised minister to make provision by regulations implementing any obligation of the United Kingdom arising under Title VI of the Treaty on European Union 1992. As the Government summary of the Act explained, this aspect of the Act concerns police and criminal judicial co-operation within the European Union and is the framework within which ‘ambitious measures’ were agreed. These include the Draft Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States, which would supplant the current system of extradition between EU Member States and allow wanted persons to be handed over directly from one judicial authority to another, based on the principle of mutual recognition of judicial decisions. In an Explanatory Memorandum provided for the House of Lords Select Committee on European Scrutiny, the Government explained that the question of the compatibility of the Framework Decision with the Human Rights Act was ‘still under consideration’ and that this policy area was ‘currently unresolved’.
The Government did not explain what is troubling it about these arrangements. So far as the Member States of the Council of Europe are concerned, it has not been open to the British courts to assess the strength of the evidence against a person wanted for extradition since the Extradition Act 1989. The fact that a person is to be removed to a foreign prison is not by itself something which engages Convention rights and the fact that he will be tried under foreign laws does not automatically do so either, even where the foreign trial process is open to significant criticism. That said, the Strasbourg Court has sometimes found that prison conditions in some European Union states are degrading; but then at least one UK court has found the same to be true of some British prison conditions.
What is clear is that section 109 means that the European arrest warrant will not be introduced by primary legislation but rather by regulation dealt with under the affirmative resolution procedure. The points that might be made about that are probably more appropriate for a constitutional law journal than for one concerned with human rights - because the Convention rights do not extend to requiring any particular form of Parliamentary scrutiny of legislation. Still, one must hope that, before laying any such regulations, the Minister will respond to the call made on him by the European Scrutiny Committee to report the outcome of his consideration of the important question of compatibility with the Human Rights Act. One must also hope that his response will be more detailed than the general statement of compatibility made about the Anti-terrorism, Crime and Security Act.
4 United Kingdom commitment to human rights
It would seem on the face of it that the Government of the United Kingdom is committed to protecting human rights. It is a permanent member of the Council of Europe and recently adopted the European Convention as the Human Rights Act 1998 ‘to give further effect to rights and freedoms guaranteed under the European Convention’. In relation to its obligations, section 6 of the Human Rights Act states: ‘(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right ...’ Moreover, all legislation must also comply with the Convention. Section 3 states that, ‘[s]o far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. Section 2 states in relation to the interpretation of Convention rights that ‘[a] court or tribunal determining a question which has arisen in connection with a Convention right must take into account any ... judgment, decision, declaration or advisory opinion of the European Court of Human Rights...’ In sum, the Act gives the Convention primacy over all public actions and legislation, unless Parliament expressly states otherwise. And, section 2 requires courts to give full regard to European jurisprudence.
Given this stated commitment to human rights, questions remain as to why the United Kingdom Government were so quick to issue a derogation order under Article 15. Arrest and detention powers under the Anti-Terrorism, Crime and Security Act do not enhance the protection of many basic principles of justice provided in the Human Rights Act. Indeed detaining individuals without clear evidence or access to a proper trial or defense violates the most basic common law tradition of fairness. However, it is also crucial to recognize that these measures have been taken within the context of a very real and ever present threat of terrorism. It is my considered view that most of the analyses weighing the impact of the anti-terror measures do not adequately consider this aspect.
5 Concluding remarks
It is true that it is relatively easy for human rights lawyers to pick holes in the government's antiterrorism strategy. Such lawyers do not themselves carry responsibility for ensuring that the most basic right of all-the right to life-is adequately protected through the taking of precautions against terrorist attacks. A government which did nothing, or not enough, to protect its people against such attacks would itself risk being found in violation of the positive obligations imposed by Arts 2 and 3 ECHR. It is also relatively easy for international bodies such as the United Nations and the Council of Europe to draw up treaties requiring governments to take steps to suppress terrorism-the Council of Europe is currently considering a further draft convention which will expressly impose duties on states to take appropriate measures to prevent the commission of acts of terrorism while respecting human rights and fundamental freedoms. But in this arena, as so often, the devil lies in the detail. Governments have to draft precise laws setting out with great specificity what steps can be taken in the fight against terrorism and this is no easy task.
Likewise, those who are responsible for monitoring the effectiveness of international human rights treaties might want to reflect on whether the current wording of those treaties, or of the interpretations placed upon them by international courts, are completely satisfactory. Can those treaties ensure that people are adequately protected against terrorists while at the same time upholding human rights in a coherent and consistent manner? Heretical though it may seem, perhaps the European Convention is itself defective in that, while some of its articles have limitations built into them based on the need to protect the rights and freedoms of others (Arts 8-11), others do not (Arts 5 and 6). Article 15, moreover, may require to be modernised so that derogations are available in more clearly identifiable situations than is currently the case. The European Court should certainly grasp the next available opportunity to expound at some length a more up-to-date interpretation of ‘a public emergency threatening the life of the nation’.
But whatever national governments or inter-governmental bodies do to protect people against terrorism, they must keep in mind that people do not want to live in societies where their rights as individuals are unduly curtailed for the sake of a greater good. Proscribing organisations that promote the use of violence for political ends is acceptable, but indefinitely detaining suspected terrorists in the current manner, in the absence of a widely-perceived public emergency, is not the answer. A balance must be struck between protecting basic human rights on the one hand and preventing terrorism on the other. This is a delicate balance at the best of times calling for a clearly thought through and measured response. There are alternative means of monitoring suspects without denying them the basic principles of liberty and justice.
It is true that to a considerable extent, the government’s strategies in combating terrorism have adversely impacted on some human rights. However, when all is said and done, maybe the question we ought to ask ourselves is what would we have done if the weight of government was placed on our shoulders?
6 Bibliography
International instruments
European Convention on Human Rights
United Nations Security Council Resolutions 1368 (2001) and 1373 (2001).
Legislation
Act Civil Authorities (Special Powers) Acts (Northern Ireland) 1922
Anti-terrorism, Crime and Security 2001
Criminal Justice (Terrorism and Conspiracy) Act 1998
Human Rights Act 1998
Northern Ireland (Emergency Provisions) Acts 1973-98
Prevention of Terrorism Bill 2005
Cases
Aksoy v Turkey (1997) 23 EHRR 553.
Artico v Italy (1980) 3 EHRR 1
Brannigan and McBride v United Kingdom (1994) 17 EHRR 539
Caprino v United Kingdom (1982) 4 EHRR 97.
Chahal v United Kingdom (1997) 23 EHRR 413.
Hewitt and Harman v United Kingdom (1992) 14 EHRR 657
Ireland v United Kingdom, App. No.5310/71, Ser.A, No.25
Kirkwood v United Kingdom 37 DR 158 (1984).
Kozlov v Finland 69 DR 321 (1991).
Napier v The Scottish Ministers (2001) The Times, November 15.
Peers v Greece, 19 April 2001.
Official Reports
Defence Select Committee, The Threat from Terrorism (2001-02 HC 348-I)
Draft Council Framework Decision on the European arrest warrant and the surrender procedures between the Member States (12102/01 COM(01) 522)
Inquiry into Legislation against Terrorism (Cm.3420, London, 1996).
Report of the Commission to consider Legal Procedures to Deal with Terrorist Activities in Northern Ireland (Cmnd. 5185, London, 1972).
Books and articles
Donoghue, LK, Counter-Terrorism Law (Irish Academic Press, Dublin, 2001).
Ericson, RV and Haggerty, KD Policing the Risk Society (Clarendon Press, Oxford, 1997).
Hogan, G and Walker, C, Political Violence and the Law in Ireland (Manchester University Press, Manchester 1989)
Kitson, F Low-Intensity Operations (Faber and Faber, London, 1971).
Raufer, X ‘New world disorder and new terrorism’ (1999) 11 Terrorism and Political Violence, 30
Walker, C ‘The bombs in Omagh and their aftermath’ (1999) 62 M.L.R. 879 C
Walker, CP, ‘The Jellicoe Report on the Prevention of Terrorism (Temporary Provisions) Act 1976, (1983) 46 M.L.R. 484
Web resources
<www.bloody-sunday-inquiry.org.uk/> accessed on 27 May 2005.
Washington Post ‘Police pin bank heist on the IRA’ <www.washingtonpost.com/wp-dyn/articles/A55625-2005Jan7.html> accessed on 27 May 2003.
BBC News ‘Belmarsh terror suspects on bail’ available at <www.bbc.co.uk/1/hi/uk/ 4222331.stm> accesed on 27 May 2003.
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