Counter-terrorism and human rights

Why is counter-terrorism a human rights issue?

Both terrorism and counter-terrorism are human rights issues.

Terrorism is a human rights issue because it involves deliberate attacks on civilians causing death and serious injury – and so engages the right to life and the right to physical integrity.

Counter-terrorism is a human rights issue because the way that the state responds to the threat of terrorism may involve exceptional measures that depart from long-established legal principles, including fundamental rights.

What is terrorism?

There is no established definition of terrorism under international law. Instead, there is a great deal of debate over which actions are terrorist and which are acts of legitimate resistance against oppressive governments. Regardless of the failure to agree on a broader definition, there is an overwhelming consensus that terrorism involves the use of threat of violence against civilians for a political purpose.

In the UK, the legal definition of terrorism is provided in section 1 of the Terrorism Act 2000. This defines terrorism as the use or threat of action which:

• involves serious violence against a person
• involves serious damage to property
• endangers a person’s life
• creates a serious risk to the health or safety of the public; or
• is designed seriously to interfere with or seriously to disrupt an electronic system

In circumstances where:

• the use or threat is designed to influence the government or to intimidate the public or a section of the public; and
• the use or threat is made for the purpose of advancing a political, religious or ideological cause.

The purpose of the definition in section 1 is not to define a crime of terrorism – virtually any terrorist offence is already a violation of existing criminal law, such as incitement, conspiracy to cause explosions or murder. Instead, section 1 acts as a trigger for the use of other counter-terrorism measures. For example, membership of a proscribed terrorist organisation is a criminal offence under section 11 of the Terrorism Act 2000.

What is the main counter-terrorism legislation in the UK?

There are now four main pieces of counter-terrorism legislation: the Terrorism Act 2000, the Anti-Terrorism Crime and Security Act 2001, the Prevention of Terrorism Act 2005, and the Terrorism Act 2006. The Special Immigration Appeals Commission Act 1997 is also relevant to the debate over counter-terrorism powers in the UK.

The Terrorism Act 2000 continues to provide the main framework for counter-terrorism powers in the UK. It contains the main powers for arrest and extended pre-charge detention in terrorism cases as well as the main terrorism offences outside the ordinary criminal law, for example, membership of and support for a proscribed organisation. Ironically it was intended to be a single, comprehensive piece of counter-terrorism legislation intended to replace the patchwork of temporary legislation that had arisen over 30 years of the Northern Ireland conflict.

Each of the subsequent Acts has been a response to a particular event – 9/11, the Belmarsh judgment in December 2004, and the 7/7 attacks.

What was the government’s response to 9/11?

In December 2001, Parliament passed the Anti-Terrorism Crime and Security Act 2001 (ATCSA), Part 4 of which allowed the Home Secretary to order the indefinite detention of foreign terrorist suspects who could not be deported on the grounds that they faced a real risk of ill-treatment contrary to Article 3 ECHR. In order to do this, the government derogated from Article 5 under the ECHR.

In addition, the only right of appeal for those detained under Part 4 was by way of the Special Immigration Appeals Commission (SIAC), established by the Special Immigration Appeals Commission Act 1997 following the Chahal judgment of the European Court of Human Rights.(([1996] ECHR 54)) Due to the use of sensitive intelligence materials (such as evidence from covert surveillance), the evidence against detainees was partly open (which the detainee would view and which his or her lawyers would be able to challenge), and partly closed (which the detainee and his lawyers would be prohibited from seeing). Instead of being able to challenge the closed evidence, the detainee would be represented by a special advocate who would argue the case on his behalf in the closed proceedings but would not be allowed to communicate with the detainee.

Despite major criticisms of Part 4 from the Newton Committee of Privy Counsellors, appointed to review ATCSA in 2003, the regime of indefinite detention was not ended until the House of Lords’ judgment in the Belmarsh case in December 2004 found that it was incompatible with Articles 5 and 14 ECHR.

What are control orders?

Control orders were the government’s response to the House of Lords ruling in the Belmarsh case, brought about under the Prevention of Terrorism Act 2005. The 2005 Act allows the Home Secretary to impose control orders on individuals whom he suspects of being involved in terrorism. Unlike indefinite detention, they may be imposed on both UK nationals and foreign nationals, something which allowed the government to lift its derogation under the ECHR. As with indefinite detention, however, any appeal against control orders may involve the use of closed proceedings and special advocates, meaning that someone wishing to challenge a control order may not know all (or any) of the evidence against them.

Control orders may impose a variety of conditions including restrictions on employment, residence, travel, communication and association with others. There are two types of orders: derogating and non-derogating. Derogating orders allow the Home Secretary to impose house arrest, but can only be made in the event that the government derogates once more from the ECHR. Non-derogating orders do not allow the imposition of house arrest but can still involve very sweeping restrictions on personal freedom.

In April 2006, Mr Justice Sullivan made a declaration of incompatibility against the 2005 Act on the basis that the low level of judicial review control order proceedings and the use of closed proceedings violated the right to a fair trial under Article 6 ECHR. In June 2006, the same judge struck down six control orders on the basis that the Home Secretary had no power to impose 18 hour curfews without a derogation from Article 5 ECHR. In August 2006, the Court of Appeal upheld Mr Justice Sullivan’s ruling on Article 5 but reversed it in relation to Article 6 (see casenote below).

What was the government’s response to 7/7?

The control order system was in place for only a short time when London was struck by terrorist attacks on 7 July 2005. Following the London bombings, the Prime Minister signalled the introduction of further counter-terrorism legislation, as well as a number of non-statutory measures. The key features of the statutory measures was the criminalisation of statements ‘encouraging’ or ‘glorifying’ the commission of acts of terrorism, and the proposed extension of the maximum period for pre-charge detention following arrest in terrorism cases from 14 days to 90 days.

The key feature of the non-statutory measures has been a renewed emphasis on deportation of foreign nationals as a counter-terrorism measure. This includes the seeking of diplomatic assurances against Article 3 ECHR ill-treatment and the UK government’s intervention in Ramzy v The Netherlands to argue that the prohibition against non-refoulement in cases involving national security is not absolute.

Although the 90 days proposal was defeated, the Terrorism Act 2006 now extends the maximum period of pre-charge detention to 28 days. In addition, it is now a criminal offence for a person to publish statements that encourage, either intentionally or recklessly, the commission of terrorist acts. This includes reference to statements which ‘glorify’ acts of terrorism.