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Published online by Cambridge University Press: 02 January 2018
This article critically appraises the UK government's recently published Consultation Paper on the future of the anti-terrorism laws. The author considers the likely effect of the Human Rights Act 1998 on the impact of any legislation that might flow from the government's proposals. The interaction between human rights law and anti-terrorism legislation provides a useful case study of the likely effects of incorporating the European Convention on Human Rights into domestic law. The author argues that many of these effects have not been anticipated by the drafters of the anti-terrorism proposals, with the result that many of their suggested changes to the law will be vulnerable to legal challenge if not sharply modified before enactment. The author concludes by considering the likelihood that, over time, successive governments will learn to tailor their legislation to the requirements of the Convention, even in the anti-terrorism field, but that in the short-term a period of legislative instability is to be expected.
My gratitude to the two anonymous readers at the Journal for helpful insights and observations on points of detail. The finished essay remains entirely my responsibility.
1. Home Office and Northern Ireland Office Legislation Against Terrorism. A Consultation Paper. Cm 4178 (London: Stationery Office, 1998).
2. The European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, many of the substantive provisions of which have been incorporated into United Kingdom law in the Human Rights Act 1998: see Sch 1 of that Act.
3. The early ground is well surveyed in B Dickson ‘The European Convention on Human Rights and Northern Ireland’ in J Velu (ed) Presence du Droit Public et des Droits de L'Homme (Brussles: University of Brussels, 1992) p 1407 et seq.
4. 1998 Act, s 3(1).
5. 1998 Act, s 6(1).
6. 1998 Act, s 19.
7. (1988) 11 EHRR 117.
8. Brannigan and McBride v United Kingdom (1993) 17 EHRR 539.
9. Above n 1, paras 14.1–14.2.
10. Above n 1, para 14.3. iii.
11. Above n l, para 4.19.
12. 31 March 1999, unreported, DC.
13. See 1998 Act, s 22(4).
14. Above n 1, paras 12.2–12.3.
15. The Rt Hon Lord Lloyd of Berwick Inquiry into Legislation Against Terrorism Cm 3420 (London: Stationery Office, 1996) paras 14.2–14.6.
16. This was the number of such convictions that had been obtained when Lord Lloyd reported: see above n 15, para 14.3.
17. For a review of the judicial record, see C A Gearty ‘The Cost of Human Rights: English Judges and the Northern Irish Troubles’ (1994) 47 Current Legal Problems 19.
18. For the background see K D Ewing and C A Gearty Freedom under Thatcher. Civil Liberties in Modern Britain (Oxford: Oxford University Press, 1990), ch 7.
19. See Lloyd above n 15, p v.
20. Legislation Against Terrorism, above n 1, para 3. 13. Emphasis in original. Incredibly, there is no mention whatsoever of racist violence, which might be thought to be the government's best card, but which – pre Macpherson – was not even thought to count.
21. Above n 1, para 3.8.
22. The empirical material is gathered in the research report conducted by Professor Paul Wilkinson for Lord Lloyd, published as vol 2 to the Lloyd Report, above n 15, at pp 30–32 and 34–35.
23. Legislation Against Terrorism, above n 1, para 3.9.
24. Above n 1, para 3.11.
25. Above n 1, para 3.12.
26. Above n 1, para 3.17.
27. Above n 1, para 3.17.
28. Article 5(1)(c). The Convention case law is set out in D J Harris, M O'Boyle and C Warbrick Law of the European Convention on Human Rights (London: Butterworths, 1995) pp 115– 119; P van Dijk and G J H van Hoof Theory and Practice of the European Convention on Human Rights (The Hague: Kluwer Law International, 3rd edn. 1998) pp 354–359.
29. Above n 7, at para 50. Cf Steel v United Kingdom 23 September 1998, ECtHR.
30. Legislation Against Terrorism, above n 1, para 7.14. Lord Lloyd's views are at paras 4.13, 4.14 and 8.13 of his report, above n 15.
31. Above n 7 at para 53. The point was made in relation to the requirement that the purpose of the arrest be to bring a suspect before a competent legal authority. As is clear from Brogan, the well known Strasbourg concept of the margin of appreciation operates less deferentially (from a State's point of view) in relation to art 5 than it does in relation to other articles. It remains to be seen the extent to which, if at all, the concept of the margin of appreciation will be transformed into a domestic principle of judicial deference and, if it is, then the extent to which this principle will be deployed in anti-terrorism cases.
32. Legislation Against Terrorism, above n 1, para 4.16.
33. Above n 1.
34. Above n 1, para 4.17.
35. United Communist Party of Turkey v Turkey (1998) 26 EHRR 121.
36. The Socialist Party v Turkey (1998) 27 EHRR 51. See generally on art 11, Hams, O'Boyle and Warbrick, above n 28, ch 12; van Dijk and van Hoof, above n 28, pp 586–601.
37. Legislation Against Terrorism, above n 1, para 8.33.
38. Murray v United Kingdom (1996) 22 EHRR 29. See also Quinn v United Kingdom (1996) 23 EHRR CD 41.
39. See eg cl 55 of the Youth Justice and Criminal Evidence Bill (HL B1117) currently before Parliament. The government's position is outlined at HC Debs, 1 December 1998, col 130.
40. See Legislation Against Terrorism above n 1, paras 6.5, 6.7 and para 6.22. See also the new powers suggested in relation to the seizure of cash in transit (at paras 6.24–6.28) and the new powers of civil forfeiture (at paras 6.29–6.30) to both of which the same considerations would also apply.
41. Above n 1, paras 8.37–8.43.
42. Compare Margaret Murray v United Kingdom (1994) 19 EHRR 193, where the involuntary photographing of a suspect in an army screening centre was found by the European Court to be justified under art 8(2). However, as discussed above in relation to Brogan, it would be wrong to assume that because the exercise of a given power has been found Convention-compliant in an Northern Ireland-based case, it would therefore necessarily be protected from Convention challenge where it is deployed against the far wider category of persons included in the ‘terrorism’ definition after enactment of the proposed new law.
43. See Legislation Against Terrorism, above n 1, ch 6. For the Convention law on art 8 in this particular context see Niemietz v Germany (1992) 16 EHRR 97.
44. Currently 12 hours, though the government proposes reducing this to nine, after which a reasonable suspicion will be required to support continuing detention: see Legislation Against Terrorism, above n 1, para 1 1.15.
45. McVeigh, O'Neill and Evans v United Kingdom (1981) 25 D & R 15. The Commission held that the stops fell within art 5(1)(b) as being designed ‘to secure the fulfilment of any obligation prescribed by law’, the obligation in the instant case being the requirement to submit to further examination at a port of entry. See further Harkin v United Kingdom (1986) 48 D & R 237; Lyttle v United Kingdom (1986) 9 EHRR 381.
46. Fox, Campbell and Hartley v United Kingdom (1990) 13 EHRR 157; Margaret Murray v United Kingdom (1994) 19 EHRR 193.
47. For what there is, see Harris, O'Boyle and Warbrick, above n 28, ch 17; van Dijk and van Hoof, above n 28, pp 747–761.
48. See Sch 1 to the Prevention of Terrorism (Temporary Provisions) Act 1989.
49. 1989 Act, s 1(2)(a).
50. 1989 Act, ss 14 and 15 and Sch 3.
51. 1989 Act, s 16 and Sch 5.
52. See generally 1989 Act, Pt III.
53. See 1989 Act, s 19(1).
54. ‘Subsection (1) does not apply to an act if (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently.’
55. Section 6(6)
56. Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland (Chairman: Lord Diplock) Cmnd 5 185 (London: HMSO, 1972).
57. Above n 56, para 61.
58. Above n 56, para 61.
59. Above n 56, para 63.
60. Northern Ireland (Emergency Provisions) Act 1973, s 7.
61. Northern Ireland (Emergency Provisions) Act 1991, s 30. See Viscount Colville Review of the Northern Ireland (Emergency Provisions) Acts 1978 and 1987 Cm 11 15 (London: HMSO, 1990) para 2.7ff.
62. Though of course the inter-state application between Ireland and the United Kingdom would have been in its early stages: see Ireland v United Kingdom (1978) 2 EHRR 25.
63. The Diplock report, above n 56, para 12. The article is reprinted in its entirety in a footnote.
64. Above n 56, para 14.
65. Above n 56, para 14.
66. Above n 56, paras 89–90.
67. See above n 56, ch of the Commission report.
68. See eg the debate on the Criminal Justice (Terrorism and Conspiracy) Act 1998 at HC Debs, 2 September 1998, col 748 (the Home Secretary).
