An effective war against terror must be mindful of the dynamics of international human rights law: A law that requires States to protect the right to life, and prevent terrorism.
Human rights law requires the State to take steps to protect the right to life – which includes measures to prevent terrorism. However, any measures taken to counter terrorism must be proportionate and not undermine our democratic values. In particular, laws designed to protect people from the threat of terrorism, and the enforcement of these laws, must be compatible with people’s rights and freedoms.
Yet, all too often, the risk of terrorism has been used as the basis for eroding our human rights and civil liberties in Britain:
• From 1969 to 2000 Parliament passed a number of temporary Prevention of Terrorism Acts, which included powers of internment and the removal of the right to trial by jury in Northern Ireland;
• After the tragic events of 11 September, 2001, emergency laws were passed which allowed for the indefinite detention of foreign nationals, who were suspected of being terrorists. Under this law, individuals could be detained for an unlimited period at a maximum security prison despite never being charged, let alone convicted, of any offence;
• After a 2004 court ruling, that indefinite detention breached human rights law, detention was quickly replaced by the control order regime in 2005. Following the 2010 Home Office counter-terrorism review, control orders were scrapped in January 2012; but they were replaced with something almost identical, replicating the regime’s worst aspects – Terrorism Prevention and Investigation Measures (TPIMs). Like control orders, TPIMs allow for indefinite house arrest, and other sweeping restrictions on individual freedoms, on the basis of largely secret intelligence and suspicion;
• The maximum period of detention without charge for most criminal suspects is 24 to 96 hours. But, between 2006 and 2011, terrorism suspects could be detained for up to 28 days without charge. Despite this period being far longer than the period of pre-charge detention in any comparable democracy, Parliament also considered (and, welcomingly, defeated) proposals first for 90 days, and then for 42 days, pre-charge detention;
• Before it was repealed, section 44 of the Terrorism Act 2000 allowed people to be stopped and searched without suspicion. This overly broad power was used against peaceful protesters and disproportionately against ethnic minority groups;
• Broad new speech offences impact on free speech rights, and non-violent groups have been outlawed;
• Schedule 7 of the Terrorism Act 2000 is a breathtakingly broad and intrusive power to stop, search and hold individuals at ports, airports and international rail stations. It can be exercised without the need for any grounds of suspecting the person has any involvement in terrorism – or any other criminal activity. This means it can be used against anyone a police, immigration or customs officer chooses. Powers like this are ripe for overuse and abuse. They are invariably used in discriminatory fashion, with stops based on stereotype rather than genuine suspicion.
• Most recently, the Government has passed the Counter-Terrorism and Security Act 2015, which again contains a raft of proposals as unsafe as they are unfair – including passport seizure and retention powers, ripe for discrimination; a regime of exclusion orders, which risks exposing British citizens to torture; statutory ‘terrorism prevention’ duties for a whole range of public bodies, including universities and schools; new data retention powers, mirroring those rejected as unlawful by the Court of Justice of the EU; and provisions which seek to breathe new life into the widely-discredited TPIMs regime.
We believe that terrorism can, and must be fought within the rule of law and human rights framework. Repression and injustice, and the criminalisation of non-violent speech and protest, make us less safe; not more. These measures act as a recruiting sergeant to the extremist fringe, and marginalise those whose support is vital to effectively fight the terrorist threat. They also undermine the values that separate us from the terrorist – the very values we should be fighting to protect.