The so-called 'war on terror' is nothing but a war on human rights". Do you agree or disagree with this statement? Use specific examples to illustrate your answer.
The ‘war on terror’ has become a global statement for the preventive measures that countries have taken after the attack on the Twin Towers of the World Trade Centre on 11 September 2001, the ‘9/11’ attacks in relation to the new terrorist threat of Islamic fundamentalism. Certain measures were taken prior to this attack, for example, the Terrorism Act (TA) 2000, and after the attack, including the Anti-Terrorism, Crime and Security Act (ATCSA) 2001 and the Prevention of Terrorism Act (PTA), adopted in March 2005. The consequences and effects of sections of these Acts are discussed below, as regards the specific articles of the European Convention on Human Rights (ECHR) as incorporated by the Human Rights Act (HRA) 1998 they are stated to flout. The implications of the draft Terrorism Bill, published in September 2005, will inevitably incite further debates in this area.
It is considered that the modern terrorist threat is a completely new phenomenon which is not attached to any specific context or individual, and is merely a supposedly ideological challenge which reflects a cultural Islamic fundamentalist view 1.
In this regard, this threat has been described as by the former Home Secretary David Blunkett as a threat to “our lives, our liberty, our values and our way of life” 2, and is regarded as an unidentifiable all-encompassing danger towards any unidentifiable targets. Therefore, the anti-terrorism measures that have been adopted are designed to deal with such a threat posing such a danger have to be preventative in nature and are aimed predominantly at members of Muslim and Arab immigrant communities, (Daniel Moeckli, p524). The corresponding measures involving broad profiles based upon religion, national origin and race demonstrate a potential incompatibility with Article 14 of the ECHR, prohibiting discrimination on the basis of race, religion, national origin or other status.
It was shown in Belgian Linguistics Case (No. 2) 3 that the EC is prepared to allow national courts to exercise some margin of discretion as to deciding the appropriateness of imposing restrictions upon certain ECHR rights, and it has been stated that “the scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background” 4 and there must be a reasonable justification for such measures and a legitimate aim thereof.
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1 Discriminatory Profiles: Law Enforcement after 9/11 and 7/7: Daniel Moeckli, p 522
2 Daniel Moeckli, p 523; Hansard HC vol 375 col 30; November 19, 2001
3 [1968] 1EHRR 252
4 Rasmussen v Denmark [1984] 7 EHRR 371 at [40]
As for measures making certain organisations illegal, this is obviously at odds with the principle of freedom of association (Article 10 ECHR), and upon their right to freedom of expression (Article 11 ECHR) 5. It has been argued that proscription is worthwhile, because it broadcasts to the general public that the organisation in question engages in criminal, dangerous and random acts of violence, and it enables criminalisation of a range of other undesirable activities, particularly the use of violence 6.
The introduction of the TA 2000 ended the previous Acts of the Prevention of Terrorism (Temporary Provisions) Act (PTA) 1989 and the Northern Ireland (Emergency Provisions) Act (EPA) 1996, and introduced the first current changes regarding the prevention of terrorism, which had possible implications for contravention of specific Articles of the ECHR; particularly, the right under section 41 for a police officer to arrest without warrant a person whom he ‘reasonably suspects’ of being a ‘terrorist’, which is defined under section 40 as a person who has committed one of the specified offences in this section or assisted in the commission, preparation or instigation of terrorism.
It was considered that section 41 could constitute a breach of Article 5 of the ECHR, in relation to the right to liberty and security of person, as the suspect could be arrested without an offence having been committed 7 in relation to an arrest under the PTA, it was held that compliance with Article 5 was not always a requisite, though in this case the applicants were suspected of being members of a prohibited organisation 8.
The detention powers introduced by the TA 2000 under Schedule 8 enabled a police officer to apply to a judicial authority for a warrant of further detention to a maximum of seven days from the time of the arrest (paragraph 29), which amended the maximum limit of 96 hours set under the Police and Criminal Evidence Act (PACE) 1984, if there were reasonable grounds for believing such an extension was necessary to obtain further evidence. In Brannigan and McBride v United Kingdom the EC held that the derogation of the UK from Article 5(3) of the ECHR was valid on the basis that it was based upon a ‘public emergency’. Since then, detention powers have been amended by the ATCSA, an emergency measure rushed through Parliament in the aftermath of 9/11 9 and further proposals are being considered in the draft Terrorism bill (see below).
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5 Law Versus Terrorism: Can Law Win? Brice Dickson: European Human Rights Law Review 2005 1, 11-28
6 R (on the application of Kurdistan Workers Party) v Secretary of State for the Home Department [2002] EWHC 644; [2002] A.C.D. 99
7 Lord Lloyd of Bernwick: HL Deb Vol 613, col 676). However, in Brogan v UK 8 ([1989] 11 EHRR 117
8 The Terrorism Act 2000: J.J Rowe QC: Criminal Law Review 2001 p 528, 532-533
9 Guantanemo Bay, London: John Cooper: New Law Journal 16 January 2004 p41
The powers to stop and search are specified in section 53 and Schedule 7 as a power to do so to determine whether the suspect is involved in the commission, preparation or instigation of acts of terrorism, detaining the suspect up to nine hours at a port or border. It has been considered that this is essential in the prevention of terrorism, especially for an island such as the UK, as stated by Lord Lloyd of Bernwick 10. However, in relation to possible conflict with Article 5 it has merely been stated that it will be a matter of judgment for the EC to determine whether the circumstances in each case have led to a breach of Article 5 or 8 12 11. The court has indicated that the officer using the power must be acting bona fide and that his conduct must be such that a reasonable person would take in the circumstances 12. It has also been stated that the Codes of Practice have reduced the possibility of contravention of Article 5 13.
However, since then, recent case law demonstrates that a more stringent review of governmental measures by the courts, as shown in A v Secretary of State for the Home Department, in which the detention powers of the ATCSA were held by the House of Lords to be in violation of Article 14, notwithstanding the real threat of contemporary terrorism. The House of Lords stated that citizenship is irrelevant as a distinction, as British nationals have been identified as also being perpetrators, and this has been reinforced by the Newton Committee in their review of the ATCSA, who established that the nature of the threat was the important distinction rather than “the ideology behind it or the nationality of the perpetrator” 14.
It has therefore been considered that if the EC has to decide upon the appropriateness of a national measure based upon broad profiles in relation to race, religion or nationality, then a very stringent test would be applied in relation to review, calling for very persuasive reasons for justification of the deviation from Article 14 of the ECHR. A wide margin of discretion for states to derogate from the ECHR would not be automatically permitted, even in the current dangerous climate, and in recent cases the margin has even been narrowed.
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10 Inquiry into Legislation against terrorism: Cm 3420 [1996]
11 J.J. Rowe, p535
12 Re Boyle, O’Hare and McAllister, Divisional Court, October 30 1980 (unreported) per Donaldson LJ
13 J.J. Rowe p537
14 Privy Counsellor Review Committee, Anti-Terrorism, Crime and Security Act 2001 Review, Report (2003-04 HC 100) December 18 2003, para 193
The views of some academics are that anti-terrorist laws present a great challenge to human rights 15, particularly the ATCSA 2001, representing the first major challenge to the operation of the HRA 1998. They are of the opinion that there is a conflict arising between the need for national security and human rights. The ATCSA has even been described as “the most draconian legislation Parliament has passed in peacetime in over a century” 16. It is noted that the government claimed in both 2000 and 2001, pursuant to s.19 of the Human Rights Act 1998, that the legislation is compatible with European Convention rights.
This has been recognized by the House of Lords in the case of A v Secretary of State for the Home Department in which Human Rights (Designated Derogation) Order 2001 was quashed whilst the House of Lords were exercising powers conferred by the Human Rights Act 1998, and they declared that s.23 of the 2001 Act was incompatible with Arts 5 and 14 of the ECHR. The House of Lords therefore restored the order of the Special Immigration Appeals Commission (SIAC), which was set aside by the Court of Appeal. This case represented the first time that UK courts were prepared to contradict policy making by Parliament aiming to meet the threat to national security.
The facts of the case involve the preventive detention powers conferred on the Home Secretary by s.23 of the ATCSA 2001. Part 4 of the 2001 Act allows the Home Secretary to issue a certificate if he reasonably believes that a specified person's presence in the UK is a risk to national security and suspects that that person is a terrorist or linked to a terrorist group. Certified individuals can then be detained indefinitely ion a high-security facility unless another country can be found to accept them. The Home Secretary can then make a deportation order against that person.
If a person faces the prospect of torture or inhuman treatment in the country to which he would otherwise be deported, then, under the ECHR, he cannot be deported. The person detained can only appeal under the procedure set out in the 2001 Act to SIAC, which has exclusive jurisdiction to determine whether the United Kingdom was entitled to derogate from the Convention. A further right of appeal is permitted to the Court of Appeal on a point of law only.
In this case, the appellants appealed against their detention under certificates issued by the Home Secretary under Pt 4 of the 2001 Act. In relation to whether the UK was justified in derogating from their obligation under Art 5 of the ECHR, and under Article 15, there had to be a state of war or public emergency. The Court of Appeal considered that the question of whether the circumstances amounted to a public emergency and decided by a majority that this was a matter for Parliament to decide upon rather than the courts.
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15 Human Rights in the Age of Terrorism: Mary Arden: Law Quarterly Review 2005, 121(Oct), pp 604-627
16 Legislating Against Terror: The Anti-Terrorism, Crime and Security Act 2001: Adam Tomkins: Public Law 2002, Sum, 205-220
In consideration of whether the ATCSA 2001 was proportional, the House of Lords stated that ATCSA was not proportional, even though there was a power of review by SIAC. Lord Scott considered that the Home Secretary had to demonstrate that less severe measures could not be adopted. In relation to whether the powers of preventive detention under the 2001 Act violated Art.14 of the Convention by discriminating unjustifiably between non-U.K. nationals and U.K. nationals (who could not be detained on suspicion) Lord Hoffmann stated that the real threat to the nation was “not from terrorism but from laws such as these” 17. The consequence of this decision is the Government does not have to release the detainees, who may apply to the court in Strasbourg, and the court saw the matter as an infringement of the detainee’s right to liberty, rather than the UK’s right to control via anti-terrorist measures.
On January 26, 2005, the Home Secretary made a ministerial statement in Parliament, acknowledging that although Pt 4 of ATCSA 2001 Act had assisted in containing the threat posed and deterred other suspected terrorists from entering or remaining in the UK, the declaration of incompatibility made by the House of Lords in the A case meant that new legislative measures had to be adopted, deportation with assurances for foreign nationals who could be deported, and new control orders for those who could not be prosecuted or deported. The Home Secretary also stated that the Government would seek to renew the powers in Pt 4 of the 2001 Act until the new legislation could be put in place.
In other cases, the House of Lords has been reluctant to intervene in Parliament’s right to protect national security. In Secretary of State for the Home Department v Rehman 18, in the consideration of whether the SIAC had adopted the right approach when making a deportation order on the grounds of a threat to national security, Lord Hoffmann stated that the government was entitled to an exclusive say in matters of national security 19, though the courts should still scrutinise the evidence supporting a particular course of action justified as being in the interests of national security.
However, it must be considered that the government can be sometimes barred from deporting persons it would like to deport because it has been held by the EC that it is a violation of Article 3 ECHR for a state to deport (or extradite) a person where "substantial grounds have been shown for believing that the person if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country", a provision which is absolute, and may not be derogated from 20.
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17 (ibid) at [97]
18 [2001] UKHL 47; [2003] 1 A.C. 153
19 (ibid) at [50]
20 Soering v UK (1989) 11 E.H.R.R. 439, paras 90-91, and Chahal v UK (1996) 23 EHRR 413, para. 74
Some critics argue that the need for the UK government to derogate under Article 15 in respect of ATCSA 2001 concerning the contravention of Art.5 by the extended power to detain foreign nationals under Pt IV of the Act is worrying as there has to be a question of whether there is a sufficient degree of public emergency within the meaning of Art.15 21. Lord Denning has stated that there is a conflict between the interests of national security on the one hand and the freedom of the individual on the other, which has to be balanced by the Home Secretary rather than a court of law 22. However, Lord Denning’s successor to the Master of the Rolls, Lord Donaldson goes one step further in stating that "the needs of national security must displace civil liberties" 23.
Regarding the circumstances surrounding the detention of people in Guantanamo Bay, there is a possible contravention of the rights to prohibition of unfair or degrading treatment and the right to a fair trial. There are nine UK citizens at Guantanemo, three are residents without UK citizenship.
Lord Steyn has stated that in times of real or imagined danger “even liberal democracies adopt measures infringing human rights in ways that are wholly disproportionate 24. He also stated that the quality of justice envisaged for the prisoners at Guantanemo Bay does not comply with minimum international standards for the conduct of fair trials. He goes so far as to describe the process as a “preordained, arbitrary rush to judgment by an irregular tribunal which makes a mockery of justice” 25.
In relation to a possible human rights challenge by one of these detainees, this could be based on the UK’s duty to take all reasonable steps, though the UK cannot adjudicate upon the legitimacy of action taken by a foreign sovereign state, or upon actions taken by the executive in the conduct of foreign relations. In Council of Civil Service Unions v Minister of Civil Service the Court of Appeal stated that it was "objectionable" that the claimant "should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention ", but not enough for the court to demand the British government to take action.
It has been considered that the application of the HRA 1998 is considerably affected by the continued girth given to the government by the courts. The ECHR requires a state to take positive action to prevent, or mitigate the effects of, violations of human rights that take place outside the jurisdiction and for which the state has no responsibility 26, but it appears that it would be only in the most extreme circumstances that the court would intervene.
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21 Terrorism and Criminal Justice: Past, Present and Future: Clive Walker: Criminal Law Review 2004 Supp (50th)
22 R. v Secretary of State for Home Affairs Ex p. Hosenball [1977] 1 W.L.R.766 at 783; The Futility of the Human Rights Act: K.D. Ewing: Public Law 2004 p 845
23 R v Secretary of State for the Home Department Ex p. Cheblak [1991] 1 W.L.R. 890
24 Guantanemo Bay: The Legal Black Hole: Lord Steyn: FA Mann Lecture
25 J. Steyn,"Guantanemo: A Monstrous Failure of Justice", International Herald Tribune, November 27, 2003
26 Abbasi [2002] EWCA Civ 1598, [2003] UKHRR 76
It has been argued that the courts have even deferred to the rights of the police officer to exercise their power to stop and search under section 44 of the Terrorism Act 2000, as shown in R (on the application of Gillan and Quinton) v Metropolitan Police Commissioner 27 in relation to an application for judicial review of decisions to stop and search under this section. Section 44 provides the police with a power to give blanket authorisation for the use of stop and search powers if expedient to stop acts of terrorism. The authorisation must then be approved by the Home Secretary, or it will lapse after two days 28. In London, the police have powers to detain up to 28 days in renewable periods for the purpose of searching for articles of a kind which could be used in connection with terrorism" 29. It is considered that such powers could be easily misused.
The facts of the Gillan and Quinton case were that the two applicants attempted to join an anti-arms demonstration in Docklands, East London. Both applicants were stopped and searched and detained for about half an hour. Nothing untoward was found and both were of previous good
Character. The High Court had to consider the decision to grant the authorization, the manner of its exercise and the Convention rights of the applicants.
Brooke LJ considered that the judicial review of such a decision of this kind was limited, because the assessment of risk to public safety and national security is paramount and the formulation of measures to safeguard these interests are primarily for the Government to decide 30. In this case, it appears that the police were just covered by the fact that the arms fair arguably necessitated such drastic action and this meant the use of section 44 powers was not abused in this instance. However, police procedures and practices were criticized.
In relation to the Convention rights under Articles 8 (right to liberty), 9 (right to privacy), 10 (freedom of assembly) and 11 (freedom of expression) of the ECHR of the applicants, it appears that this was not a priority consideration. The court was preoccupied with the threat to the UK, and considered that the measures taken accordingly justified any violation of the claimant's rights under ECHR, and that the exercise and use of the power was proportionate to the gravity of the risk.
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27 [2003] EWHC Admin 2545, The Times, November 5, 2003
28 section 46(2)
29 section 45(1)(a)
30 (ibid) at [35]
British human rights lawyers have expressed their concerns at a number of proposals in the draft Terrorism Bill, including the extension of the period of pre-charge detention for terrorism suspects beyond the 14 day limit set in PACE to three months, and indicate that the government will have to provide very strong arguments for justification of such a change, which should be reviewed at regular intervals by a High Court judge 31. The government should not be denied the powers it needs to defend the UK's national security in a time of real crisis, but that the measures should be strictly necessary, proportionate, accompanied by adequate procedural safeguards, and targeted at the exceptional situation with which they were designed to deal 32. Therefore, even though it is untrue that the ‘war on terror’ is simply a war on human rights, these rights are an important consideration.
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31 Taking a World View: Kevin Martin: Law Society Gazette 6 October 2005 p 16
32 Adam Tomkins, p 220
BIBLIOGRAPHY
Discriminatory Profiles: Law Enforcement after 9/11 and 7/7: Daniel Moeckli, p 517- 532
Guantanemo Bay, London: John Cooper: New Law Journal 16 October 2004 p 41
Law versus Terrorism: Can Law Win: Brice Dickson: European Human Rights Law Review 2005, p 11-28
Human Rights at Bay: Peter Williamson: Law Society Gazette Vol 100 No 43 p 18
Human Rights in the Age of Terrorism: Mary Arden: Law Quarterly Review 2005, 121(Oct), pp 604-627
Legislating Against Terror: THE Anti-Terrorism, Crime and Security Act 2001: Adam Tomkins: Public Law p 205-220
Taking a World View: Kevin Martin: Law Society Gazette Vol 102 No 38 p 16
Terrorism and Criminal Justice: Past, Present and Future: Clive Walker: Criminal Law Review 2004 Supp (50th)
Terrorism and Human Rights: A Case Study in Impending Legal Realities: Conor Gearty: Legal Studies 1999 p 367-379
The Futility of the Human Rights Act: K.D. Ewing: Public Law 2004 p 829-852
The Terrorism Act 2000: J.J Rowe QC: Criminal Law Review p 527-542
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