Terrorism and civil liberties in the UK - Essay Example

 Terrorism and civil liberties in the UK Introduction: The unprecedented terrorist attack on 9/11 in the United s was followed four years later by successful terrorist attacks in London, on July 7, 2005 and an attempted attack on July 21, 2005.1 These attacks have produced legislation such as the Terrorism Act of 20002 and Anti Terrorism Crime and Security Act of 2001 that has built upon the draconian measures set up in the Public order Act of 1994 and is now being used by police officers in routinely bypassing the requirement of reasonable suspicion of a criminal offence in order to clamp down on members of the public.3 The Government holds the position that a curtailment of civil liberties of individuals as mandated in the Human Rights Act of 19984 is justifiable in order to counter the threat from terrorism, but this position is being increasingly found untenable in view of the serious encroachments into the fundamental rights of members of the public32. Has the so called war on terror and the legislation it has generated significantly undermined civil liberties in the U.K? Analysis: In the case of the terrorist attacks of 2005, the culprits were second generation British Muslim citizens under the influence of radicals.5 This event was followed by a new Directive from the Government in 2005 which is known as the Serious Organized Crime Agency.6 This SOCA legislative action specifically arose in response to the four bombs exploding in London in July 2005 and the order sets out the police priority as being to “combat serious and organized crime, within and across force boundaries,”7 creating a further range of new powers for the police, over and above the expanded powers that have already been granted through the Terrorism bill and the earlier 1994 Criminal Justice Bill. It has been argued that Britain is a democracy and liberal democracies are more susceptible to such attacks because of their open nature.8 Consequently, in the face of such a grave threat to the country and to provide protection from potential terrorist attacks in the future, some restrictions on civil liberties may be justified.9 Enders and Sandler have provided a formal model illustrating the terrorism damage which may counterbalance the restriction on civil liberties10. Campbell and Connolly argue that a revised framework of the law, which allows a greater degree of power to law enforcement agencies, will be able to achieve anti terrorist benefits.11 The past two decades have brought forth a slew of harsher legislation12 to deal with the problems of terrorism and deteriorating law and order, which seriously question former Prime Minister John Major’s contention that “we have no need of a Bill of Rights because we have freedom.”13 Some examples of the curbing of civil liberties of ordinary citizens are the curtailment of the right of public protest, control orders, indefinite detention and arrests without warrants. Public protests are generally encompassed within the framework of the right to free expression and free association14 which is an essential part of a democracy. Restrictions on public gatherings, camping and other activities, to cope with criminal and terrorist elements, have resulted in a wider range of activities being construed as criminal offences.15 Trespassing on land and refusing to leave when asked to do so by the police constitutes an offence16. The Act also allows the police to prohibit any gatherings of more than 20 people on any land “of historical, architectural, archaeological or scientific importance”17 by obtaining an order from a local authority to ban such an assembly if they have a reasonable suspicion that there could be disturbances18. Such measures19 have purportedly been introduced in the interest of controlling terrorism and public disorder, so that; “conduct which constitutes one or more offences shall be regarded as a serious crime where it involves conduct by a large number of persons in pursuit of a common purpose.”20 Overall, the provisions of the Terrorism Acts allow the police a greater level of leeway in clamping down on the fundamental rights to liberty that are assured under Article 5 of the European Convention of Human Rights, by way of permitting arrests without warrants, trials without juries and indefinite detention21. Control orders limit the freedom of movement and communication of those who are detained under the provisions of the Terrorism Acts. The indefinite detention of foreign terror suspects and the use of control orders22 especially, violate the provisions of the Human Rights Act of 1998. The Terrorism Act of 2000 has significantly expanded the powers of the Home Office and security and police forces on issues such as the establishment and maintenance of terrorist organizations, support by individuals of terrorist organizations, the suspicion of initiation of terrorist activity on British soil and the glorification of terrorism in any shape or form. Hammerton views the Terrorism Act of 2000 as “a serious assault on civil liberties” because it uses a very broad definition of terrorism, so that under the scope of such an expanded definition, even those who cause damage to property, interfere with electronic systems or support resistance against repressive regimes would be subject to punitive action taken under its provisions.23 Actions falling within the scope of terrorism include acts which may not be strictly terrorist, but where the police will be permitted to launch a terrorist investigation.24 Section 3 of the Act allows the Secretary of State to proscribe any organization if he believes it is linked to terrorist activity or supporting terrorist activity and there is no requirement for a case to be made out first before such action is taken25. This could constitute a serious infringement of the right to a fair trail of the organization in question. Police are also provided the power to search and arrest any person they believe to be a terrorist, without a warrant26. As Hammerton points out, this constitutes a serious infringement on civil liberties, because terrorism is given a wide description under the Act, as a result the police can stop, search and arrest anyone engaging in suspicious activity, without any need to provide reasonable grounds for their suspicions or actions.27 Under PACE 1984 and the Terrorism Act, police officers can now apply to circuit judges to sub poena documents they believe vital in a terrorist investigation and can even undertake surveillance operations on suspected members of the public without any authorization, on the basis that national security is at risk or for “the purpose of preventing or detecting crime.”28 The justification that has been offered is the fact that they are a “necessary and proportionate response to the threat that we continue to face”, a position that the House of Lords found to be unacceptable – indefinite detention of individuals on grounds of suspicion of terrorist activity was held to be incompatible with human rights.29 According to Lord Nicholls: “Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law. It deprives the detained person of the protection a criminal trial is intended to afford.”30 Lord Macintosh of Haringy had spoken out on the provisions concerning public order in the Criminal Justice Act of 1994 and has stated unequivocally that “these are repulsive extensions of police power in our society and at some stage, they will have to be removed.”31 Michael Howard and other opponents have criticized the plans under the SOGA on the basis that they are “an unprecedented affront to free-born Englishmen.”32 This corroborates the views of Privacy International, in putting forward objections to new legislation that has expressed the fears of many Englishmen and women that “Britain is rapidly losing many key democratic safeguards.”33 In view of the ever expanding scope of police powers through new legislation, Lord Macintosh’s view especially would hold good, that these are unacceptable extensions of police power34. Any abuse of such wide ranging powers by the police is difficult to control – both judges and politicians are reluctant to “second guess the police” particularly in matters concerning intelligence, which has therefore practically provided a free hand to the police35. In the case of A v Secretary of State for the Home Department36 certain aspects of the U.K’s response to terrorism were found to be disproportionate to the level of threat that was being posed by terrorists. Lord Derry Irvine has also pointed out the importance of the Human Rights Act of 1998, through the words of Lord Woolf who said, “The recognition of the need to adhere to the rule of law by protecting human rights is essential to the proper functioning of democracy.”37 However, it may be argued that the new draconian legislation achieves exactly the opposite end and in effect constitutes an unacceptable infringement of civil liberties, as also found in the case of A v Secretary of State for the Home Department.38 Sovereignty rests in the hands of the people, according to Locke and one man is obliged to do no harm to another.47 According to Feldman, individual rights must be balanced against social goals48 human rights foster democracy since they “help to establish the conditions of free speech, tolerance, equality and mutual respect for people’s dignity…”49 Lord Derry Irvine visualizes the incorporation of the Human Rights Act of 1998 into UK law as being a vital step that has transformed the country from restricted stage where the citizens only had the “freedom to do what was not prohibited” to a vital, thriving democracy.50 Conclusions: The Preamble to the Universal Convention of Human rights establishes “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family” as the basis upon which its Articles are founded.39 This is echoed in the Bill of Rights of most countries that uphold human rights and fundamental freedoms.40 The Human Rights Act of 198841 has incorporated the goals of the European Convention of Human Rights within the framework of national law. Parliament. The Human Rights Act of 1998 is intended to give the provisions of the European Convention “teeth that can bite”42 in order to ensure compliance with the standards of individual freedom set out under the Convention. When examining the steadily expanding powers that are being handed over to the police through legislation as set out above, the basic issue is the abrogation of the safeguards of the criminal process, as Lord Nicholls has so clearly outlined above43. This has also steadily extended into the civil process and the curtailment of freedoms mandated under the Human Rights Act has affected not only the so-called terrorists but also members of the general public. Lawmakers have not hesitated to increase the powers of the police to such draconian measures that compromise on the safeguards imposed by common law upon the rights of the public; the argument they offer is that of self regulation by police officers through the limitations of common decency.44 But the expanded police powers leave room for their abuse and have only encroached further into the fundamental rights of citizens. The provisions of the Terrorist Acts and other legislation as well as restrictive control orders have been used against prostitutes, the mentally ill, protesters and beggars, posing a significant threat to civil liberties through the lack of discretion in the use of such powers.45 On this basis, it may be concluded the stringent police action issuing forth as a result of draconian legislation is equivalent to a violation of the rights of free speech and respect for other people’s dignity as set out under the Human Rights Act. ………………………………1916 words Bibliography * A v Secretary of State for the Home Department (2004) UKHL 56 * ANONYMOUS. “The Criminal Justice and Public Order Act 1994: What’s in it for you”, New Statesman and Society, London: February 17, 1995: 8(340), pp SS7 * ANONYMOUS. “UK Police Powers outlined”, American Libraries, December 2005: 36(11), 2005, pp 25-26 * BLICK, Andrew, Choudhury, Tufyal and Weir, Stuart. “The Rules of the Game: Terrorism, Community and Human Rights”, Available online on URL: ; April 18, 2008 * “Britain: Liberty adrift; anti terrorism laws” The Economist, 368(8341), September 13, 2003 * “Britain: A blow for democracy: law Lords”, The Economist , December 18, 2004: 373(8406). * “Britain: Repeat Offending, Labor and the Law”, The Economist London: November 12, 2005: 377(8452), pp 34 * CAMPBELL, Colm and Connolly, Ita. “Making War on Terror? Global Lessons from Northern Ireland”, 69 Modern Law Review, 935, 2006. * “Curbing terror or menacing freedom” Economist.com/Global Agenda, London: March 11, 2005, pp 1 * DERRY, Irvine. “The Human Rights Act: principle and Practice”, Parliamentary Affairs , 57(4), 2004, pp 745 * ENDERS and Sandler, Todd. “The Political Economy of Terrorism”, Cambridge University Press, 2006. * EYERMAN, J. “Terrorism and Democratic States: Soft Targets or Accessible Systems”, 24 International Interactions, 1998, p 151-170. * FELDMAN, David. “Civil Liberties and Human Rights in England and Wales”,(2nd edn), Oxford: Oxford University Press, 2000 * HAMMERTON, James. “The Terrorism Act 2000 – Commentary”, http://www.magnacartaplus.org/bills/terrorism/; April 20, 2008. * LANDMAN Todd. “The United Kingdom: The Continuity of Terror and Counterterror”, in “National Insecurity and Human Rights: Democracies Debate Terrorism” 84-85 (Alison Brysk & Gershon Shafir eds),Gaia Books in associaiton with University of California Press, 2007. * “Leaders: Taking Britain’s liberties – taking liberties, anti social behavior in Britain”, The Economist, Feb 5, 2005: 374(8412). * LOCKE, John. Two treatises of Government, 1690. Internet Modern History Sourcebook, ; April 18, 2008 * “Organized crime The Government’s priorities 2005”. [online] available at: ; April 18, 2008 * R v Secretary of the State for the Home Department, ex parte Brind (1991) AC 696 * Ridall, G.J. 1999. “Jurisprudence”,(2nd edn) London: Butterworths * “Universal declaration of Human Rights”.< http://www.unhchr.ch/udhr/lang/eng.htm>; April 20, 2008 * WASIK, Martin and Taylor, Richard. “Blackstone’s Guide to the Criminal Justice and Public Order Act 1994”, London: Blackstone Press, 1994, at pp 81 Legislation cited: * Anti Social behavior Orders of 1998 * Anti Terrorism Crime and Security Act of 2001 * Criminal Justice and Public Order Act of 1994 * European Convention of Human Rights * Human Rights Act of 1998 * Security Services Act of 1996 * Prevention of Terrorism Act of 2005 Read More