Abstract
This chapter traces developments in Great Britain related to counterterrorism during the last few years and highlights the challenges to the rule of law raised by it, in particularly for the judiciary. It portrays the British constitutional order finding its feet after the fundamental changes made by the 1998 Human Rights Act, describing the tension arising with the judicial role changing while facing controversial measures such as 90-day detention, detention orders, and shoot-to-kill policy. An analysis of case law, government action, and academic debate end with a call for a new formula can be found, by which security interests can be measured against human rights.
Originally published by Springer Science + Business Media in the European Journal on Criminal Policy and Research, issue 13:1–2 (April 2007), pg. 73–83.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
See the response of the Director General of Liberty, Shami Chakrabarti, “Nothing to Hide, Nothing to Fear” (2004) Counsel, May, p.10; A. Khan, “Identity cards: the final nail in the coffin of civil liberties?” (2006) J. Crim. L. 139–146. In spite of considerable opposition, the Identity Cards Act 2006 received the Royal Assent on 30 March 2006, but no date appears to have been set for its implementation.
- 2.
The police have shown a degree of uncertainty about this issue. Witness in particular the shooting of the Brazilian electrician (Mr Jean Charles de Menezes) apparently suspected of being a suicide bomber in the Stockwell London underground station on 22 July 2005. Was this sort of anxiety what prompted the Metropolitan Police Commissioner to begin taping his telephone conversations with the Attorney-General? See Nolten (2005) 156 New Law Jo 693.
- 3.
The House of Lords has answered this question with a resounding no, in A v Secretary of State for the Home Department (No 2) (2005) UKHL 71, [2005] 3 W.L.R. 1249, as to which see my note in the Smith [2006] C.L.J. 252. And see Lord Hope, “Torture” (2004) 53 I.C.L.Q. 807. But the then Home Secretary told Parliament, “I say that the right to be protected from the death and destruction caused by indiscriminate terrorism is at least as important as the right of the terrorist to be protected from torture and ill-treatment”; Hansard, H.C., 26 October 2005, cc 325–328.
- 4.
As it was so memorably put by the President of the Supreme Court of Israel A. Barak in Public Committee Against Torture v Israel, 26 May 1999, H.C. 5100/94.53(4) P.D. 817, 845. See also his “Foreword: A Judge on the Role of the Supreme Court in a Democracy” Barak (2002) 116 Harv. Law R. 16.
- 5.
For an interesting exploration of the consequences of regarding terrorists as being combatants in a war rather than as ordinary criminals who should be dealt with by the ordinary processes of the domestic criminal law, see Vaughan Lowe, “‘Clear and present danger’: Responses to Terrorism” (2005) 54 I.C.L.Q. 185.
- 6.
See generally, Phillippe Sands, Lawless World (2006), chapter 8 for a passionate elaboration of the argument that the war was unlawful.
- 7.
See in particular the Attorney General Lord Goldsmith’s (2005) speech to the CBBE (Paris) “Balancing Security and Fundamental Rights – the EU Presidency view” 19 November 2005. Lord Goldsmith was complaining in particular about the inappropriate partiality of the Military Tribunals through which it was intended to prosecute the detainees, a view later vindicated by the decision of the US Supreme Court in Hamdan v Rumsfield (decided 29 June 2006)
- 8.
The cases were Rasul v Bush 124 S. Ct. 2686 (2004) (Sup Ct (US) on whether the US courts have jurisdiction to hear habeas corpus claims brought by non-US nationals with respect to their detention at the Guantanamo Bay centre; Hamdi v Rumsfeld 124 S. Ct. 2633 (2004) (Sup Ct (US) on whether the Government had the authority to detain a US citizen as an enemy combatant on the ground that he had allegedly engaged in military action against US forces in Afghanistan; Rumsfeld v Padilla 124 S. Ct. 2711 (2004) (Sup Ct (US) on whether the detention of a US citizen, who had been unarmed on capture and was not accused of involvement in the Afghan conflict, was unconstitutional. For discussion, see David Golove, “United States: the Bush administration’s “war on terrorism” in the Supreme Court” (2005) I.J.C.L. 128–146. See also O. Fiss, “The War Against Terrorism and the Rule of Law” (2006) 26 O.J.L.S. 235.
- 9.
Ruth Bader Ginsberg, “’A Decent Respect to the Opinions of [Human] kind’: The Value of a Comparative Perspective in Constitutional Adjudication” [2005] C.L.J. 575.
- 10.
Including, it might be said, historical perspective. It is not complacent to point out that the British experience in the course of the twentieth century included two world wars, and the second of these involved assaults upon the civilian population of London and other cities such as Coventry and Plymouth causing far greater casualties that anything yet inflicted by Al Quaeda.
- 11.
Lord Bingham, “Personal Freedom and the Dilemma of Democracies” (2003) 52 I.C.L.Q. 841.
- 12.
Ed. D. Feldman, English Public Law (2004) p. 1334. The passage was cited in full by Lord Walker of Gestinghope in A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 A.C. 68, at [199].
- 13.
One might instance in particular the Explosive Substances Act 1883 as an example of this. See C.A. Gearty and K.D. Ewing, The Struggle for Civil Liberties: Political Freedom and the Rule of Law (2000).
- 14.
For the criminal law aspects of which, see J.J. Rowe, “The Terrorism Act 2000” [2001] Crim. L.R. 528.
- 15.
The Bill was presented to Parliament on 12 November 2001, and received Royal Assent on 14 December 2001. Its operation has been reviewed by a Committee of Privy Counselors, chaired by the Rt. Hon Lord Newton of Braintree (18 December 2003). The Government reply is to be found as “Counter Terrorism Powers: Reconciling Security and Liberty in an Open Society (2004) Cm 6147.
- 16.
It is at least arguable that Parliament has thereby reinstated a version of the General Warrant/writ of assistance in a way that would have John Wilkes revolving at high speed in his grave. They are not identical, since “…they specify the suspects, but not the premises, and they permit multiple searches of those unspecified premises. They seem intended to permit fishing expeditions; they seem to risk encouraging harassment. Most ethnic Englishmen’s homes will no doubt remain their castles, but rather fewer Muslim homes.” See John Barrell, London Review of Books, 6 July 2006.
- 17.
Ireland v. UK (1978) 2 EHRR 25.
- 18.
“Human Rights, Terrorism and Risk: The Roles of Politicians and Judges” [2006] P.L. 364 at p. 371.
- 19.
Another example is to be found in the stop and search powers to be found in the Terrorism Act 2000, s. 44. This authorises the Metropolitan Police Commissioner to make an order identifying an area within which he may authorise officers to stop and search members of the public for articles that could be used in connection with terrorism. Unlike the ordinary powers, there need be no proof of reasonable grounds to suspect those who are stopped and searched. The order’s existence must be confirmed by the Home Secretary and may last for no longer than 28 days. In fact, ever since the Act came in to force, the Commissioner has exercised the power in such a way that an order has been continuously in force. In Gillan v Metropolitan Police Commissioner [2005] EWCA Civ 1067, [2005] Q.B. 388, a court took the view that the continuous use of the orders was justified in the circumstances, but that on the facts the Commissioner had not succeeded in showing that the use of the power was lawful on this occasion.
- 20.
R (on the application of Bermingham, Mulgrew and Derby v Director of the Serious Fraud Office [2006] EWHC 200 (Admin), [2006] 3 All E.R. 239. The incident has caused considerable alarm in the business community, as evidenced by the full-page open letter to the Home Secretary in The Daily Telegraph of 5 July 2006, signed by many leading businessmen, in which the claim is made that the arrangements are “manifestly unfair” and that although this “was done with good intentions – to help the fight against terrorism,” the outcome has been highly damaging to the national interest. No criticism is made of the courts for interpreting the legislation in such a way as to apply to non-terrorism cases.
- 21.
See Helena Kennedy, Just Law (2004), who gives as an illustration the fact that the right to silence was first curtailed (by permitting adverse inferences from silence) as a response to the emergency in Northern Ireland, before being introduced on to the mainland by the Criminal Justice and Public Order Act 1994, ss 34–38.
- 22.
Lord Wilson, “The Robustness of Conventions in a Time of Modernisation and Change” [2004] Public Law 407.
- 23.
“Constitutional Reform: A Supreme Court for the United Kingdom” July 2003.
- 24.
Constitutional Reform: A New Way of Appointing Judges, July 2003. Replies to both papers were sought by 7 November 2003.
- 25.
See Lord Woolf, “The Rule of Law and a Change in the Constitution” [2004] 63 C.L.J. 317.
- 26.
The issue is explored further below.
- 27.
[2006] P.L. at p. 380.
- 28.
See the Report of the Home Affairs Committee, 2 July 2006.
- 29.
The technique is one frequently adopted by the current Government. On-the-spot fines for certain public order offences, for example, made their first appearance in the form of a suggestion by Mr Blair that the police might be given powers to march offenders up to the cash-point till to obtain money with which to pay for offences committed. Recently, the power to fine on-the-spot for offensive conduct under the Public Order Act 1986 resulted in a £80 fine being levied upon a person selling T-shirts bearing the legend “Bollocks to Blair.” See The Times, 4 July.
- 30.
So called because they were introduced on the recommendation of a Report of a Commission chaired by Lord Diplock, Cmnd 5185) (1972). It was introduced by the Northern Ireland (Emergency Provisions Act 1973). See B. Dickson, “Northern Ireland’s Emergency Legislation” [1992] P.L. 529.
- 31.
In Hamdan v Rumsfield (decided 29 June 2006).
- 32.
It may be noted that such courts have extensive powers to order that trials, and ancillary hearings should take place in camera where this may be necessary in the interests of national security and the avoidance of harm to the due administration of justice. Although provision is made for notice to be given in advance that a prosecutor intends to ask for an in camera order, and the press and other “persons aggrieved” have a right of appeal against such an order, rules of court stipulating that an application for leave to appeal and the appeal itself “shall” be heard in camera does not fall foul of the requirements of Article 6 of the Convention right to a “fair and public hearing.” See Re A [2006] EWCA Crim 04, [2006] 2 All E.R. 1.
- 33.
By the Immigration Appeals Commission Act 1997. This was introduced as a result of the decision of the ECHR in Chahal v UK (1996) 23 E.H.R.R. 413, which had expressed doubts as to whether the non-statutory procedures of the non-statutory panel could be accounted “fair” for the purposes of Article 6 of the Convention.
- 34.
See R v H and C [2004] Crim. L.R. 861 (public interest immunity) (2005) 154 New Law Jo. 233; [2005] P.L. 195, (2005) 149 S.J. 842 (Parole Board).
- 35.
See R. Stevens, The English Judges: Their Role in A Changing Constitution (2002).
- 36.
Lord Steyn, “Deference: A Tangled Story” [2005] P.L. 346, at 359.
- 37.
See A.T.H. Smith, “Dicey and Civil Liberties: A Comment” [1985] P.L. 608; Lord Steyn, “Democracy, the Rule of Law and the Role of Judges” (2006) E.H.R.L.R. 243; see also D. Feldman “Human Rights, Terrorism and Risk: the Role of Politicians and Judges [2006] P.L. 364.
- 38.
Disputes have tended to arise in the context of judicial review of administrative action (in which Sir William Wade was the acknowledged founding father), and in connection with the exercise of sentencing powers in criminal cases. As to the former, see Lord Woolf, “Judicial Review – the Tension between the Executive and the Judiciary” (1998) 114 L.Q.R. 579. See also D. Bonner, “Human Rights; Criminal Law; Checking the Executive (2006) E.P.L. 45. Vera Baird Q.C., a Government Minister in the Department for Constitutional Affairs, was obliged to withdraw her criticism of a judge’s exercise of his sentencing powers. See Frances Gibb, The Times, 27 June 2006.
- 39.
See the remarkable lecture of the then Chief Justice of England in which Lord Woolf describes the Lord Chancellor as “that engagingly friendly and cheerful chappie” (320), “The Rule of Law and a Change in the Constitution” [2004] 63 C.L.J. 317 and the events leading up to the Constitutional Reform Act 2005.
- 40.
Human Rights Act 1998, s. 4.
- 41.
(2004) UKHL 56, (2005) 2 A.C. 60. The case and its implications are discussed more fully by Dame Mary Arden, “Human Rights in the Age of Terrorism” [2005] 121 L.Q.R. 604.
- 42.
Chahal v United Kingdom (1996) 23 E.H.R.R. 413.
- 43.
At [42].
- 44.
[2005] 121 L.Q.R. at pp. 623–624.
- 45.
[2006] EWHC 1000 (Admin).
- 46.
Re JJ, KK, GG, HH, NN, LL. (28 June 2006).
- 47.
See, for example, A. Le Sueur, “The Judicial Review Debate: From Partnership to Friction” (1996) 31 Government and Opposition 8.
- 48.
These were articulated in Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374.
- 49.
See generally, Mark Elliott, The Constitutional Foundations of Judicial Review (2001). On judicial Independence, see R. Stevens, The Indepencence of the Judiciary: The View From the Lord Chancellor’s Office (1997).
- 50.
[51] At p. 383.
- 51.
The Act makes reference to the importance of both the rule of law and the independence of the judiciary, but it is beyond the scope of this chapter to subject it to a detailed examination. Balancing Liberty and Security? A Legal Analysis of United Kingdom Anti-Terrorist Legislation.
References
Arden, D. M. (2005). Human Rights in the Age of Terrorism. The Law Quarterly Review , Volume 121, 604–627.
Bader Ginsberg, R. (2005). A Decent Respect to the Opinions of [Human] kind: The Value of a Comparative Perspective in Constitutional Adjudication. The Cambridge Law Journal, 64/3, 575–592.
Barak, A. (2002). Foreword: A Judge on the Role of the Supreme Court in a Democracy. Harvard Law Review, 116/1, 16–162.
Barak, A. in Public Committee Against Torture v Israel, 1999, H.C. 5100/94.53(4) P.D. 817, 845.
Barrell, J. (2006). Unwarranted–Review about ‘John Wilkes: The Scandalous Father of Civil Liberty’ by Arthur Cash. London Review of Books, 28/13, 6 July.
Bingham, T. (2003). Personal Freedom and the Dilemma of Democracies. International and Comparative Law Quarterly, 52/4, 841–858.
Blunkett, D., Secretary of State for the Home Department (2004). Counter Terrorism Powers: Reconciling Security and Liberty in an Open Society. http://www.homeoffice.gov.uk/documents/cons-count-terror-powers-310804?view = Binary
Bonner, D. (2006). Checking the Executive? Detention Without Trial, Control Orders, Due Process and Human Rights. European Public Law, 12/1, 45–71.
Chakrabarti, S. and Gallagher, C. (2004). Nothing to Hide, Nothing to Fear. Counsel,Volume 5 (May 2004), 10–12.
Department for Constitutional Affairs (2003a). Constitutional Reform: A Supreme Court for the United Kingdom. http://www.dca.gov.uk/consult/supremecourt/supreme.pdf
Department for Constitutional Affairs (2003b). Constitutional Reform: A New Way of Appointing Judges. http://www.dca.gov.uk/consult/jacommission/judges.pdf
Dickson, B. (1992). Northern Ireland’s Emergency Legislation. Public Law, Issue 4 (Winter 1992), 592–624.
Dinton, Wilson (2004), The Robustness of Conventions in a Time of Modernisation and Change. Public Law, Issue 2 (Summer 2004), 407–420.
Lord Diplock (1972). Report to the Commission to Consider Legal Procedures to deal with Terrorist Activities in Northern Ireland. Her Majesty’s Stationery Office: London.
Elliott, M. (2001). The Constitutional Foundations of Judicial Review. Oxford: Hart Publishing.
Fiss, O. (2006). The War Against Terrorism and the Rule of Law. Oxford Journal of Legal Studies, 26/2, 235–256.
Feldman, D. (2004). English Public Law. Oxford: Oxford University Press.
Feldman, D. (2006). Human Rights, Terrorism and Risk: the Role of Politicians and Judges. Public Law, Issue 1 (August–November 2005), 364–384.
Gearty, C. A and Ewing, K. D. (2000). The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain, 1914–1945. Oxford: Oxford University Press.
Gibb, F. and Charter, D. (2006). Cameron’s Bill of Rights Leaves Lawyers Baffled–The Tory Leader Runs into a Little Legal Difficulty over His Plan to Copy the US. The Times. http://business.timesonline.co.uk/tol/business/law/public_law/article679810.ece
Lord Goldsmith (2005). Balancing Security and Fundamentals Rights – the EU Presidency View. Speech of the Attorney General to the CBBE (Paris). http://www.attorneygeneral.gov.uk/attachments/19_11_05_speech_to_CCBE_sec_fund_rights.doc
Golove, D. (2005). United States: the Bush administration’s “war on terrorism” in the Supreme Court. International Journal of Constitutional Law, 3/1, 128–146.
Hansard, H. C., 2005, cc 325–328.
Hope, D. (2004). Torture. International and Comparative Law Quarterly, 53/4, 807–832.
House of Commons: Home Affairs Committee (2006). Terrorism Detention Powers. Fourth Report of Session. Volume I.
Kennedy, H. (2004). Just Law: The Changing Face of Justice–And Why It Matters To Us All. London: Random House UK.
Khan, A. (2006). Identity Cards: The Final Nail in the Coffin of Civil Liberties?. Journal of Criminal Law, 70/2, 139–146.
Le Sueur, A. (1996). The Judicial Review Debate: From Partnership to Friction. Government and Opposition: An International Journal of Comparative Politics, 31/1, 8–26.
Lowe, V. (2005). Clear and Present Danger: Responses to Terrorism. International and Comparative Law Quarterly, 54/1, 185–196.
Nolten, S. (2005). Personal Injury Update. New Law Journal, Volume 155/No. 7175, 693–695.
Privy Counsellor Review Committee (2003). Anti-terrorism, Crime and Security Act 2001 Review: Report. London: The Stationary Office.
Rowe, J.J. (2001). The Terrorism Act 2000. The Criminal Law Review, Issue 7 (July 2001), 27–542.
Sands, P. (2006). Lawless World: America and the Making and Breaking of Global Rules. London: Penguin.
Smith, A.T.H. (2006). Disavowing Torture in the House of Lords. The Cambridge Law Journal, 65/2, 252–254.
Smith, A.T.H. (1985). Dicey and Civil Liberties: A Comment. Public Law, Issue 4 (Winter 1985), 608–611.
Lord Steyn (2005). Deference: A Tangled Story. Public Law, Issue 2 (Summer 2005), 246–359.
Lord Steyn (2006). Democracy, the Rule of Law and the Role of Judges. European Human Rights Law Review, 11/3, 243–253.
Stevens, R. (1997). The Independence of the Judiciary: The View from the Lord Chancellor’s Office. Oxford: Clarendon.
Stevens, R. (2002). The English Judges: Their Role in a Changing Constitution. Oxford et al.: Hart.
Lord Woolf, H. (1998). Judicial Review – the Tension Between the Executive and the Judiciary. The Law Quarterly Review , Volume 114, 579–593.
Lord Woolf, H. (2004). The Rule of Law and a Change in the Constitution. The Cambridge Law Review, 63/2, 317–330.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2010 Springer Science+Business Media, LLC
About this chapter
Cite this chapter
Smith, T. (2010). Balancing Liberty and Security? A Legal Analysis of UK Anti-Terrorist Legislation. In: Wade, M., Maljevic, A. (eds) A War on Terror?. Springer, New York, NY. https://doi.org/10.1007/978-0-387-89291-7_16
Download citation
DOI: https://doi.org/10.1007/978-0-387-89291-7_16
Published:
Publisher Name: Springer, New York, NY
Print ISBN: 978-0-387-89290-0
Online ISBN: 978-0-387-89291-7
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)