In July 2000 the UK’s anti-terrorist laws were consolidated in a single statute, the Terrorism Act 2000. However, the seismic events of 9/11, followed by the 7/7 atrocities and other failed or foiled home-grown terrorist attacks, prompted four subsequent pieces of legislation containing controversial provisions: the Anti-Terrorism, Crime and Security Act 2001, the Prevention of Terrorism Act 2005, the Terrorism Act 2006, and the Counter-Terrorism Act 2008. Not long after having won the May 2010 general election, the coalition government promised a review. At the end of January 2011 the Home Secretary, Theresa May, announced the results. But rather than a radical overhaul, the sting has merely been taken out of the most controversial elements – principally stop and search provisions, control orders, and the length of pre-charge detention.
Sections 44 and 45 of the 2000 Act permitted the police, in areas designated for the purpose by a senior police officer, to stop and search at random without requiring suspicion, for articles that could be used in connection with terrorism. The fact that blacks and Asians were many times more likely to be stopped and searched than whites, and the whole of London was a ‘designated area’, exposed these provisions to particular criticism. The Judicial Committee of the House of Lords (now the Supreme Court) unanimously held that, provided stops and searches were not based on racial profiling alone, the European Convention on Human Rights would not be breached. But the European Court of Human Rights disagreed. It held that, as they stood, these provisions violated the right to respect for private life because there were insufficient safeguards to exclude arbitrary interference, especially since the relevant test for designating an area was ‘expediency’ rather than ‘necessity’. While the applicants were neither black nor Asian, the Court nevertheless also expressed concern that blacks and Asians were four times more likely than their white counterparts to be stopped and searched, and that there was also evidence of white people being stopped and searched purely to produce greater racial balance in the statistics. Use of sections 44 and 45 have now been suspended prior to repeal.
The 2001 Act introduced, amongst other things, a regime of indefinite detention without trial. In December 2004 the Judicial Committee of the House of Lords held that this violated the European Convention on Human Rights because it was disproportionate to the threat the UK currently faces and because it was discriminatory in that it applied only to foreign nationals. The 2005 Act replaced the offending provisions with a ‘control order’ regime – a form of house arrest on the basis of judicially-untested suspicion, involving electronic tagging, night curfews, compulsory relocation, and other strict and detailed limits on association, movement, use of information and communication technology etc. The UK courts subsequently accepted that, while this regime could be justified in principle, some of its more draconian elements, eg curfews of 16 hours, could not. In her announcement the Home Secretary said that control orders would be replaced by ‘terrorism prevention and investigation measures’. But the old ‘orders’ and the new ‘measures’ each share a core element – non-judicial restrictions on freedom. However, there are also differences. ‘Terrorism prevention and investigation measures’, which are expected to come into effect in December 2011, will raise the evidential threshold from ‘reasonable suspicion’ to ‘reasonable belief’ of involvement in terrorism. They also abolish compulsory residence relocation, will expire after two years, replace curfews of up to 16 hours by overnight residence requirements of up to 10 hours, tighten exclusion zones, and relax the restrictions on association and access to information and communication technology. However, a new ban on foreign travel will also be introduced. The older control order regime, which can still be restored in an emergency, required annual parliamentary renewal. But its replacement is permanent.
The Home Secretary has also announced that the 28 day pre-charge detention period, introduced by the 2006 Act, will be limited to 14 days, a reflection of the fact that nobody has in fact been detained for longer. However, the 28 day period can be restored in exceptional circumstances.
While these developments have been broadly welcomed by Amnesty International, Liberty and the Equality and Human Rights Commission they are much less substantial than some hoped. They also reveal both how difficult it is to avoid restrictions on human rights when there is a credible terrorist threat, and how determining what these should be will almost inevitably involve fine tuning by Parliament, the courts and the government whatever its political hue.
*The ideas expressed in this column are solely the opinions of the author and not necessarily of the Dialogue Society