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?

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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 focused on the deprivation of liberty,1 this article will instead consider in detail the right *P.L. 111 not to be subjected to torture or cruel, inhuman or degrading treatment, and the right to freedom of expression. It also examines whether the courts have been able to block, or even slow, the apparent retreat from the principles enshrined in the HRA. The significance of procedural obstacles, as well as the inherent weaknesses of the HRA regime itself, will be considered. This paper will conclude by outlining some practical implications of recent UK anti-terror legislation. The Great leap forward

The Purpose of the Human Rights Act
In Rights Brought Home, the White Paper with which the Human Rights Bill was introduced in 1997, the Government clarified the purpose of the legislation: “It will give people in the United Kingdom opportunities to enforce their rights under the European Page1

Convention in British courts rather than having to incur the cost and delay of taking a case to the European Human Rights Commission and Court in Strasbourg. It will enhance the awareness of human rights in our society. And it stands alongside our decision to put the promotion of human rights at the forefront of our foreign policy”2 Rights Brought Home also argued that the new legislation would lead to closer scrutiny of the human rights implications of new legislation and new policies.3 A leading role in scrutinising new legislation was to be played by the House of Lords/House of Commons Joint Committee on Human Rights (JCHR).4 Since the coming into force of the Human Rights Act in late 2000,5 domestic courts have frequently looked to the intentions of Parliament as an aid to interpreting the provisions and scope of the HRA, and have accepted that the purpose of the HRA was to give “domestic legal effect” to the UK's obligations under the ECHR.6 These obligations relate, of course, to the protection of certain, defined, human rights. It should be noted that the rights protected under the...
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