The prevention of terrorism: in support of control orders, and beyond (original) (raw)
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This article aims to assess the impact that the European Convention of Human Rights, incorporated into British law through the Human Rights Act 1998, has had on the control order regime in the United Kingdom. It will discuss recent British jurisprudence on the topical question whether there can be a true balance between the civil liberties of an individual and the need to protect state and society from a continuing terrorist threat. The article compares the UK’s present control order system of summer 2010 with similar legislation, which the Commonwealth jurisdictions of Australia and Canada enacted to protect their nations from the threat of terrorism. It will conclude with a discussion of possible reforms as well as other security measures that have been identified as alternatives to control orders and which form the basis of present UK governmental initiatives to limit scope and impact of Anti Terrorism Legislation.
Contemporary British anti-terror legislation has been characterised by an extensive use of extra-ordinary detention measures: the Terrorism Act 2000 and Terrorism Act 2006 contain provisions, which enable the extended pre-charge detention of terror suspects beyond the limits of normal criminal procedure. The now repealed provisions of Part IV of the Anti-terrorism, Crime and Security Act 2001 allowed the indefinite detention of foreign national terror suspects on a quasi-judicial basis. Its successor, the Prevention of Terrorism Act 2005, enables the use of Control Orders, effectively a form of house arrest characterised by restrictions on an individual’s liberty. In short, these measures have in common the extensive limitation of the individual’s right to liberty under Article 5 of the European Convention on Human Rights. Whilst the judiciary have curtailed the most abhorrent manifestations of such extraordinary measures, as detailed, the legal framework as it exists today, still raises ECHR compliancy issues. Legal reformation should be sought to end such an impasse by amending at the very least the statutory framework already in place. Ideally anti-terror detention provisions should be brought back within the sphere of criminal law and in compliance with the ECHR.
Straddling the Civil/Criminal Divide: The Terrorism Suppression (Control Orders) Act 2019
New Zealand Law Review, 2022
The Terrorism Suppression (Control Orders) Act 2019 establishes a regime of judiciallyimposed control orders, devices that subject particular individuals to restrictions on their liberty outside of the criminal justice process. This article discusses the impetus for the control order legislation, namely the need to have a means of dealing with certain returnees from the Syrian Civil War, as well as the legislation's key features, which are derived from equivalent laws in the United Kingdom and Australia. The article also considers whether the legislation might breach certain rights under the New Zealand Bill of Rights Act 1990. The overall picture that emerges is that a considerable responsibility and burden is being placed on the courts to remedy, or at least mitigate, the rights concerns that might arise through the operation of this piece of permanent counterterrorism legislation.
The reshaping of control orders in the United Kingdom: Time for a fairer go, Australia!
2013
The Australian version of control orders under div 104 of the Criminal Code Act 1995 (Cth) sch was very much hewn in the image of the United Kingdom’s Prevention of Terrorism Act 2005 (UK). These orders allow severe restrictions on personal freedoms to be imposed on terrorist suspects without proof of any criminal offence. Disquiet about the legitimacy of control orders in the United Kingdom has now resulted in a reform process, the outcome of which is the Terrorism Prevention and Investigation Measures Act 2011 (UK). A critical assessment in an Australian context of these British reforms is timely because of the recently released Council of Australian Governments Review of Counter-Terrorism Legislation as well as the second annual review by the Independent National Security Legislation Monitor. The paper will advocate that, despite misgivings, some variant of control should be retained in Australia and that the revisions embodied in the Terrorism Prevention and Investigation Measur...
The Orwellian Reality of Counter-Terrorism Measures Under The ECHR
Groningen Journal of International Law, 2020
This paper seeks to analyze the impact of terrorism on the enjoyment of civil liberties guaranteed under the European Convention on Human Rights (ECHR). The paper profoundly assesses case law from the European Court of Human Rights (ECtHR) in order to assess how the Court manages to guarantee that rights are still respected and upheld, even when weighed against the most severe circumstances, namely terrorism. In doing so, the counter-terrorism legal system of one of the most controversial parties to the ECHR, the United Kingdom, is assessed to identify issues which arise when combating terrorism. Surveillance and stop-and-search are archetypical anti-terrorism measures that are limited through the ECtHR in order to not excessively infringe upon human rights, in accordance with Lloyd’s notion of imposing sufficient safeguards if new measures are enacted. Although the ECtHR can be considered an essential guarantor for human rights through its judicial dialogues and influences on domes...
Could the United Kingdom's derogation order 2001 breach the European convention on human rights
After the September 11 attacks on the US many countries all over the world took a number of drastic measures to crackdown on whom they suspected to be terrorists. These measures were criticized by many academicians and human rights activists as incompatible with human rights conventions, charters and legislations, internationally and domestically. Then, the United Kingdom passed Human Rights Act 1998 (Designated Derogation) Order 2001 which was seriously criticized as being against the country's several treaties on human rights and most especially the Human Rights Act. This article critically analyses that derogation order in view of the so many decisions of the European Court of Human Rights and the provisions of the European Convention on Human Rights and the United Kingdom's Human Rights Act.