The Human Rights Act and Anti-Terrorism in the Uk: One Great Leap Forward by Parliament, but Are the Courts Able to Slow the Steady Retreat That Has Followed?

Public Law
2010
The Human Rights Act and anti-terrorism in the UK: one great leap forward by Parliament, but are the courts able to slow the steady retreat that has followed?
David McKeever Subject: Human rights. Other related subjects: Administrative law. Criminal law
Keywords: Administrative law; Freedom of expression; Inhuman or degrading treatment or punishment; Terrorism; Torture
Legislation: Human Rights Act 1998 Counter-Terrorism Act 2008 Terrorism Act 2006 Anti-terrorism, Crime and Security Act 2001 Terrorism Act 2000
European Convention on Human Rights 1950 art.3, art.10
Cases: A v Secretary of State for the Home Department [2005] UKHL 71; [2006] 2 A.C. 221 (HL) A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 A.C. 68 (HL) Chahal v United Kingdom (22414/93) (1997) 23 E.H.R.R. 413 (ECHR)
*P.L. 110 Its 10th anniversary in late 2008 drew many commentaries on the strengths and weaknesses, utility and purportedly harmful effects of the Human Rights Act 1998. The debate has continued into 2009, with discussion of potential repeal of the Act and/or the introduction of a Bill of Rights. This paper seeks to contribute to these debates, with a focus on one area of government policy which gained renewed emphasis shortly after the entry into force of the Human Rights Act, namely anti-terrorism. Legislative and other measures in the field of anti-terrorism regularly engage the provisions of the 1998 Act. It appears that the UK Government, in adopting anti-terrorism measures, frequently ignores the provisions and indeed goals of the regime it itself established a decade ago.
The first section of this paper outlines the legal regime which the Human Rights Act (HRA) sought to establish. In sections two and three some general issues will be discussed, including the underlying problem of defining “terrorism”, and some notable aspects of the anti-terrorism regime introduced since 2000.
While much debate on anti-terrorism legislation has

Cited: See, e.g. UN Security Council Resolution 190 of June 9, 1964, condemning the “Rivonia Trial” whereby the South African apartheid regime prosecuted 16 members of the African National Congress, including Nelson Mandela, for various acts of sabotage. B. Russell, “Peers throw out planned crime of ‘glorifying’ terror”, The Independent, January 18, 2006. On the UK Government 's response, see G. Hurst, “Peers vote against ‘glorying terrorism’ law”, The Times, January 17, 2006. The Act received Royal Assent on March 30, 2006. D. Feldman, “The Impact of Human Rights on the UK Legislative Process” (2004) 25 Statute Law Review 91. See, a contrario, K.D. Ewing and J-C. Tham, “The continuing futility of the Human Rights Act” [2008] P.L. 668, 693. AF [2009] UKHL 28 at [67]. See comments by Alan Johnson, Home Secretary, cited in F. Gibb, “Disarray over terror control orders after law lords ruling on secret evidence”, The Times, June 11, 2009 N. Whitty, T. Murphy and S. Livingstone, Civil Liberties Law: The Human Rights Act Era (Oxford: OUP, 2001), p.162. See also C. Walker, “Clamping Down on Terrorism in the United Kingdom” (2006) 4(5) Journal of International Criminal Justice 1137. F. Gibb, “Human Rights Act key to fight against terrorism, says Lord Philips of Worth Matravers”, The Times, October 4, 2007.