The impact of counter-terrorism laws on the right to individual liberty as protected by the ECHR

Background

The conflict between state security and individual liberty is a part and parcel of counter-terrorism legislation and often legislation seeks to balance this conflict. The applicability of the European Convention of Human Rights (ECHR) as well as the compulsory jurisdiction of the European Court of Human Rights (ECtHR) has meant that the balance achieved by the British legislation is subject to the standards set in the ECHR as well as the jurisprudence developed by the European Court of Human Rights.

Counter-terrorism has been a regular feature of the English legal system for a long time. As such, the problem of terrorism is not new in the UK and nor are the legal responses to the problem. England fought colonial terrorism in its colonies in the 19th century and Irish terrorism for the most part of the 20th century. In the 1970s and 1980s, the British Parliament enacted many temporary counter-terrorism legislations, such as, the Prevention of Violence Act 1939, Prevention of Terrorism (Temporary Provisions) Act 1974, Northern Ireland (Emergency Provisions) Act 1973. All of these legislations had provisions for pre-charge detention. Special courts were recommended by the 1972 Lord Diplock Commission, where trial was held before a single judge and without a jury. This led to the enactment of the Northern Ireland (Temporary Provisions) Act 1973, which provided for trial by special courts, also called Diplock Courts. Up until this time, the legislative responses to terrorism were always temporary in nature. It is also noteworthy that all of these responses were aimed at providing for extraordinary measures, such as pre-charge detention or use of special courts. These measures were mired in controversy for their effect on individual liberties. When the British Parliament passed the Human Rights Act 1998, effectively enacting the rights under European Convention of Human Rights (ECHR), the counter-terrorism measures became subject to the standards set in the ECHR as well as the jurisprudence developed by the European Court of Human Rights (ECtHR).

In 1996, when Lord Lloyd of Berwick presented his seminal report, it led to significant changes in counter-terrorism laws. The case of UK v Brogan, was also instrumental in influencing the report. In this case pre-charge detention was held to be contrary to the provisions of ECHR, Article 5 by the European Commission. UK v Brogan brought attention to the conflict between state security and individual liberty that is involved in counter-terrorism legislation and its extraordinary measures. Lord Lloyd recommended that pre-charge arrest was useful because it enabled the police to prevent terror acts before they were committed. However, keeping in mind the arbitrary nature of this power and the decision of the European Court in UK v Brogan, Lord Lloyd recommended that judicial review of detention be mandatory.

As a result of Lord Lloyd’s report, the first permanent counter-terrorism legislation was passed, this being, Terrorism Act 2000. This legislation includes extraordinary provisions such as pre-charge detention. Other legislations have been passed since then, including:

Anti-Terrorism and Crime Security Act 2001, Prevention of Terrorism Act 2005, the Terrorism Prevention and Investigative Measures Act 2011, the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, 2011 among others. The Terrorism Prevention and Investigative Measures Act 2011 allow the making of TPIM notices against terror suspects, which have replaced the control order regime. The control orders were held to be violating of ECHR rights.

As the above discussion reflects, counter-terrorism law has evolved to a great extent in the UK. The discussion also reflects on the applicability of the ECHR to counter-terrorism law because However, there are some significant changes in the nature of terrorism and the level of threat that terrorism poses. Since the events of September 11, 2001, the perception of the threat to the state and individual security has become greater. However, the British government’s attempts to make counter-terrorism laws with harsh measures, such as indefinite detention of terror suspects, has been met with resistance as well as judicial disapproval. It is pertinent to mention that the Human Rights Act 1998, section 4, gives power to the British courts to make declarations of incompatibility between ECHR rights and any British legislation. In A & Others v. Secretary of the State for the Home Department the House of Lords used this provision to hold that the indefinite detention provision in the Anti-Terrorism and Crime Security Act 2001 was contrary to ECHR provisions. This led to the repeal of the provisions by the British Parliament. Clearly, the impact of the provision of indefinite detention was averse to the protection of the suspects’ human rights under the ECHR.

Sources of information

The sources of information in this research will include both primary and secondary sources. Secondary sources will include books, articles in journals, and investigative reports in newspapers and magazines. Counter-terrorism legislations, EU laws and directives, judgements of courts, etc., will be included in the primary sources.

Major areas of research

The principal questions for this research are:

The main areas of research, which will be covered in the chapters are tentatively as follows:

Significance of the topic

This topic is of significance to policy makers because it involves one of the most difficult areas in legislating on counter-terrorism, which is, the balancing of concerns for security of state with concerns for protecting human rights. At the same time, the ever present and constant threat of terrorism, makes the wider subject area in the topic (i.e. terrorism), relevant in the present time. The continuing relevance of this subject matter, makes this to be an interesting area for research and the findings of the same will be of interest to future researchers, teachers, students and policy makers.

Terrorism has become one of the most difficult areas in maintenance of state security. The nature of the threat is evolving and states, including the United Kingdom, face a difficult task of fighting and preventing acts of terror. At the same time, UK being a liberal democracy, it has to ensure that the laws made by it to counter terror, are not draconian or against the accepted and well-established norms such as due process and natural justice. Also important is the regime of individual liberties, as established under the common law, Human Rights Act 1998, and the ECHR, which sets the standards on the basis of which the legality of state action is to be judged, if such action violates human rights and liberties.

Considering the above, a relevant question that may arise with respect to counter-terrorism at the present time, is whether the laws made by the state are contrary to the standards of human rights regime. In other words, is the impact of the counter-terrorism legislation, adverse to individual liberties as protected by the ECHR? On the other hand, a question may even be asked as to whether the application of the ECHR makes counter-terrorism law weak and restricted.

This question takes on more significance in the light of the Brexit vote, where British people voted in favour of leaving the EU. One of the major factors that have been recognised to have an impact on the Brexit vote, is the lax immigration policy under the EU, which is considered to be a reason for the rise in terrorism in the UK. The relationship between immigration and increase in terrorism has taken on significance after the September 11, 2001 attacks, after which the threat of Islamic terrorism has become prominent. Consequently, Western countries such as United States and the United Kingdom are now linking issues related to securitisation to increasing fears of fundamentalism and terrorism.

The applicability of ECHR has been identified as one of the factors for Brexit.

Literature review

Preliminary literature review has shown that although there are a number of scholarly works in this area, the issue of conflict between individual liberty and state security is one that is highly contested in literature. By no means a resolution to this problem has been found as yet. In fact, the area of terrorism research contains many such contested concepts, starting with the definition of terrorism itself. The work of Schmid and Jongman demonstrated the difficulty in finding a single universally agreed upon definition of terrorism. Recent scholarship has come to similar conclusions on this issue.

The major research in this study will be on the conflict posed by counter-terrorism laws between individual liberty and state security. The possibility of this conflict arises due to the use of extraordinary measures such as pre-charge detention in counter-terrorism laws. In order to get a perspective on this conflict, it is necessary to gain a perspective on concepts of liberty and security. One author has pointed out the significance of the conflict, saying that:

“The conflict between liberty and security in the context of terrorism is one between two equally significant human rights values, one of which cannot take precedence over the other.”

Liberty is recognised as a ‘residual’ concept in the common law, and also recognised in Entice v. Carrington. This means that an individual has as much liberty as not denied specifically by any law. The ECHR, Article 5 protects the right to personal liberty.

The concept of national security is a contested idea and there are different aspects of national security. Arnold Wolfers in a seminal essay, wrote that national security means the security of the core values of the society. It has been accepted that while military security is an important aspect of national security, other aspects, such as economic and social security are also important aspects of national security. Terrorism is a threat to national security. However, when the state responds to terrorism, its actions may also threaten individual liberties, as pointed out by Barry Buzan:

“Terrorism, like other forms of political violence, not only undermines the individual’s security directly, it is likely also to increase the threats to individual security offered by the state itself, as well as those coming from other states.”

Therefore, terrorism presents a threat to state security as well as individual liberty. Counter-terrorism laws also threaten individual liberty by providing extraordinary measures. A study of such impact of counter-terrorism laws is worth undertaking in the special contexts provided by the British counter-terrorism laws, its liberal democratic traditions and the standards of human rights set by its common law, as well as by ECHR.

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