Terrorism and human rights: a case study in impending legal realities

Terrorism and human rights: a case study in impending legal realities*

Conor Gearty Professor of Human Rights Law, King’s College London

This article critically appraises the UK government’s recently published Consultation Paper on the future of the anti-terrorism laws. The author considers the likely effect of the Human Rights Act 1998 on the impact of any legislation that might jlow from the government’s proposals. The interaction between human rights law and anti-terrorism legislation provides a useful case study of the likely effects of incorporating the European Convention on Human Rights into domestic law. The author argues that many of these effects have not been anticipated by the drafters of the anti-terrorism proposals, with the result that many of their suggested changes to the law will be vulnerable to legal challenge if not sharply modified before enactment. The author concludes by considering the likelihood that, over time, successive governments will learn to tailor their legislation to the requirements of the Convention, even in the anti-terrorism field, but that in the short-term a period of legislative instability is to be expected.

LEGISLATING IN THE OLD STYLE

The Human Rights Act 1998 is now likely to be brought fully into force in October 2000. The subject of this essay is the relationship between that Act and the government’s consultation paper on terrorism,’ published in December 1998 and due to be followed by new, permanent anti-terrorism law sometime in the near future. Here is a subject of deep civil libertarian concern, which manifestly raises an array of European Convention points.* It has been to Strasbourg and back on innumerable occasions, building up a not inconsiderable corpus of law along the way.3 Among its many other revolutionary aspects, the Human Rights Act requires all past and future legislation to be interpreted ‘[slo far as it is possible to do so’ in a way which is ‘compatible with the Convention rights’ enacted in its first S~hedule.~ It insists that all public authorities henceforth

* My gratitude to the two anonymous readers at the Journal for helpful insights and observations on points of detail. The finished essay remains entirely my responsibility. 1. Home Office and Northern Ireland Office Legislation Against Terrorism. A Consultation Paper. Cm 4178 (London: Stationery Office, 1998). 2. The European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, many of the substantive provisions of which have been incorporated into United Kingdom law in the Human Rights Act 1998: see Sch 1 of that Act. 3. The early ground is well surveyed in B Dickson ‘The European Convention on Human Rights and Northern Ireland’ in J Velu (ed) Presence du Droir Public et des Droirs de L’Homme (Brussles: University of Brussels, 1992) p 1407 et seq. 4. 1998 Act, s 3(1).

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should act in a way which is compatible with the Convention.’ In a section which has already been implemented, the minister promoting any government Bill in Parliament must declare whether the proposed measure is ‘in his view’ compatible or incompatible ‘with the Convention rights’: Yet there is little sign of this new human rights reality in the Consultation Paper; indeed, the Act is not mentioned at all in it.

This is not to say that the European Convention itself is wholly ignored. The key decision of Brogan v United Kingdom,’ which ambushed the Conservative administration during the passage through Parliament of the Prevention of Terrorism (Temporary Provisions) Act 1989, is noticeably influential in the Consultation Paper’s proposals on extended detention. The government is laudably determined to bring any new anti-terrorism law within the principles set out in Brogan and therefore to do away with the embarrassing derogation on seven day detention without charge which was subsequently upheld in a controversial ruling by the European Court of Human Rights.’ Where the Consultation Paper is not inclined to adopt this or that course, such as on

the criminalisation of the refusal to answer police questions,I0 and incitement to commit terrorist acts abroad,” it is perfectly happy to invoke human rights principles in general and the European Convention in particular as a justification for its chosen stance. Praiseworthy though these references are, they represent legislative planning in the old, pre-Human Rights Act style, with the executive taking the European Convention on Human Rights seriously only when it throws a European Court judgment across its path, but otherwise treating human rights and civil liberties as desirable but wholly dispensable accessories to the realisation in law of its effectively-sovereign will. In this traditional model, the wishes of government on a subject as sensitive as terrorism were invariably translated into law by a quiescent Parliament, thereafter to be insulated from challenge in all domestic courts, and vulnerable to Strasbourg review only after a most circuitous and time-consuming journey, replete with technical traps at every jurisdictional crossing on the way. Thanks to the Human Rights Act 1998, but in a way apparently not yet fully understood in the Home Office, this is no longer the approach to be taken either to the Convention or to the domestic courts that are to police it.

A glimpse of the future can be seen in the extraordinary Divisional Court decision in R v DPP, ex p Kebilene.” When the Human Rights Act is finally brought into force, it will be possible for any person against whom proceedings are being brought by or at the instigation of a public authority to rely on an infringement of his or her Convention rights in such proceedings, regardless of when the alleged infraction of such a right (or rights) by the public authority took place.I3 This provision alone shows how far-reaching the implications of

5. 1998 Act, s 6(1). 6. 1998 Act, s 19. 7. (1988) 1 1 EHRR 117. 8. Brannigan and McBride v United Kingdom (1993) 17 EHRR 539, 9. Above n 1, paras 14.1-14.2. 10. Above n 1, para 14.3. iii. 11. Aboven l,para4.19. 12. 31 March 1999, unreported, DC. 13. See 1998 Act, s 22(4).

Terrorism and human rights: a case study in impending legal realities 369

the Human Rights Act are likely to be, retrospectively as well as prospectively. The constitutional importance of ex y Kebilene (under appeal to the House of Lords at the time of writing) is that it requires the DPP to act in the pre- implementation period of the Human Rights Act in a way which anticipates the effect of that Act when it is fully in force. On the facts before it, the court held that the DPP had failed to take properly into account the correct legal implications arising from the probable reality that any final appeal from the appellants’ trial would fall to be considered in the new legal climate brought about by the (by then) implemented Human Rights Act. His decision was for that reason unlawful. Whether or not this ruling is upheld in the Lords will matter enormously in the short term, since its effect may be to impose the Human Rights Act on much of domestic law prior to its formal implementation. But of interest for present purposes is not this constitutional point but rather the substance of the case before the court.

The human rights issue in exxp Kebilene was the alleged infringement of the European Convention of s 16A of the Prevention of Terrorism Act, under which it is an offence in Britain to possess any article in circumstances which give rise to a reasonable suspicion that it is to be used in connection with terrorism. Under the terms of the provision, a person is guilty of the offence if he or she does not explain satisfactorily the possession of such an article. The Divisional Court was emphatic that the reversal of the burden of proof explicit in the prosecution of a person for this crime violated an accused’s presumption of innocence under arts 6( 1) and ( 2 ) of the Convention. The point was anticipated neither in the Consultation P a p e P nor in the inquiry by Lord Lloyd which preceded it,lS and there are at least 24 convictions under the equivalent power in Northern Ireland that may now have to be revisited.16 What the case shows is that the courts may be unafraid to use the new powers the Human Rights Act gives them even in those fields whose sensitivity had previously protected them from a vigilant judiciary even when the courts had room for manoeuvre.” If this is in fact the case, then litigation under any new anti-terrorism law that the government chooses to force through Parliament is likely to be very interesting indeed.

THE PROPOSED NEW ANTI-TERRORISM LAW

As is well known, the corpus of law gathered under the prevention of terrorism rubric only got a foothold in the United Kingdom as a result of an extremely high level of IRA-inspired subversive violence in Britain in the first half of the 197Os.lx Initially intended only as a short-term measure, its temporary status has become more and more problematic as its content has grown over the years,

14. Above n 1, paras 12.2-12.3. 15. The Rt Hon Lord Lloyd of Berwick Inquiry into Legislarion Against Terrorism Cm 3420 (London: Stationery Office, 1996) paras 14.2-14.6. 16. This was the number of such convictions that had been obtained when Lord Lloyd reported: see above n 15, para 14.3. 17. For a review of the judicial record, see C A Gearty ‘The Cost of Human Rights: English Judges and the Northern Irish Troubles’ (1994) 47 Current Legal Problems 19. 18. For the background see K D Ewing and C A Gearty Freedom under Thatcher. Civil Liberties in Modern Britain (Oxford: Oxford University Press, 1990), ch 7.

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embracing first international as well as Northern Ireland-based ‘terrorism’ and then, more recently, a whole raft of initiatives aimed at so-called ‘terrorist Godfathers’, ie those who allegedly managed the finances and other operations of subversive organisations from a safe distance. The dramatic reduction of subversive violence from Northern Ireland-based groups in recent years has, not surprisingly, led to pressure for a root and branch reappraisal of this whole legislative edifice. In December 1995, Lord Lloyd of Benvick was asked by the then Home Secretary, Michael Howard, ‘to consider the future need for specific counter-terrorism legislation in the United Kingdom if the cessation of terrorism connected with the affairs of Northern Ireland leads to a lasting peace . . .’,I9 and it is the report that Lord Lloyd went on to produce in October 1996 which now forms the policy backbone of the government’s Consultation Paper.

The critical strategic judgment facing all official evaluators of this legislation is whether it is worth persevering with, shorn of its Irish rationale. The obvious answer as the law is presently constructed is No; ‘international terrorism’ is a dubious notion at the best of times and, even if the idea has any substance, there are hardly sufficient numbers of ‘international terrorists’ around to justify such a panoply of state power aimed only at them. The port controls, the arrest and search powers, the special rules on detention and the vast schedules aimed at ‘terrorist’ financing would all look faintly ridiculous if they could only be sporadically deployed against a few foreigners for whom the ordinary criminal law and the deportation power were already perfectly sufficient. The solution that both Lloyd and the government have come up with is to extend the terrorism laws to include domestic groups, ie UK-based subversive bodies and persons whose unacceptable activities are unconnected with Northern Ireland. This is a judgment which is absolutely essential if the legislation is to survive in an era of relative stability in Northern Ireland, since it expands the remit inward on a vast scale, particularly when it is allied to the new definition of terrorism that the government also proposes. But such a change is certain to be very controversial, and the courts, newly emboldened and equipped with the Human Rights Act, may be capable of being persuaded not to take it at face value.

The key point is the absence of empirical data of any domestic emergency at all, much less of one on the scale of the IRA-inspired campaign of violence in the early 1970s. Five short paragraphs in the Consultation Paper explain why the government ‘has come to the conclusion that any new counter-terrorism legislation should be designed to combat serious terrorist violence of all kinds’.*’ First, it is stated that ‘in the last 25 years the main domestic terrorist threat in the UK has come from militant animal rights activists and to a lesser extent from Scottish and Welsh nationalist extremists’,*’ though the level of violence from these groups is admitted to be low, both in its own terms and in comparison with the IRA? While it is accepted that the activities of the nationalist groups have

19. See Lloyd above n 15, p v. 20. Legislation Against Terrorism, above n 1, para 3. 13. Emphasis in original. Incredibly, there is no mention whatsoever of racist violence, which might be thought to be the government’s best card, but which - pre Macpherson - was not even thought to count. 21. Above n 1, para 3.8. 22. The empirical material is gathered in the research report conducted by Professor Paul Wilkinson for Lord Lloyd, published as vol2 to the Lloyd Report, above n 15, at pp 30-32 and 34-35.


‘considerably diminished’ and will probably ‘decline still further’, there can nevertheless ‘be no absolute guarantee of this’ in the future.23 Equally, though not enjoying the ‘sophistication’ of Northern Ireland-based groups and with a ‘lower. . . level of terrorist activity’, there is ‘nothing to indicate that the threat’ posed by environmental and animal rights activists ‘will go away’.24 That the argument for an extension of the terrorism laws is based on fear of the future rather than judgment about the present becomes clear in the government’s final justification for the expansion of the law:

‘There is also the possibility that new groups espousing different causes will be set up and adopt violent methods to impose their will on the rest of society. In the United States, for example, there is an increasing tendency by individuals and groups to resort to terrorist methods. Some of those opposed to the USA’s laws on abortion have bombed clinics and attacked, and, in a number of cases, killed doctors and nursing staff employed by them. Although there have been no comparable attacks in the United Kingdom, the possibility remains that some new group or individual could operate in this way in the future, threatening serious violence to people and property here.’25

Once the ‘terrorist expert’ has switched the ground of the argument from what has happened to what might happen, victory has been assured. Anything might happen: Parliament might be blown up, Prince Charles might be injured by a letter bomb, the water supply might be poisoned by a Japanese terrorist angry about the length of the queue for Madam Tussauds. The reach of the new anti- terrorism law proposed by the government will be furthered deepened by the proposal that terrorism should be redefined to embrace ‘the use of serious violence against persons or property, or the threat to use such violence, to intimidate or coerce a government, the public, or any section of the public for political, religious or ideological ends’.26 Even this definition will probably be further expanded in any proposed legislation to include ‘serious disruption, for instance resulting from attacks on computer installations or public utilities’ .”

TESTING THESE PROPOSED NEW LAWS IN THE COURTS

Having made this expansion into domestic dissent, the government is content that the vast majority of the anti-terrorism powers currently available in respect of Northern Ireland-based and international terrorism should be retained and, where appropriate, strengthened. This is where the Human Rights Act comes into play. The empirical basis for the exercise of these powers will need to be justified in a way which has never been possible under the old legal regime to which successive governments have become so comfortably inured. Take, for example, the power to arrest on (reasonable) suspicion of involvement in terrorism, which is the bedrock of the anti-terrorism laws, since it permits arrest and detention without any suspicion of a specific crime. At first glance, this

23. Legislation Against Terrorism, above n 1, para 3.9. 24. Above n 1, para 3.1 1. 25. Above n 1, para 3.12. 26. Above n 1, para 3.17. 27. Above n 1, para 3.17.

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power would appear to be directly at odds with the right to liberty in art 5( 1) of the Convention, since the only relevant exception to that right that could apply here, art 5( l)(c), requires that the deprivation of liberty be ‘effected for the purpose of bringing [a person] before the competent legal authority on reasonable suspicion of having committed an offence’.’X In Brogan, however, this power survived art 5( 1) scrutiny because, on the facts before the court -

‘the applicants were not in fact suspected of involvement in terrorism in general, but of membership of a proscribed organisation and involvement in specific acts of terrorism, each of which constituted an offence under the law of Northern Ireland and each of which was expressly put to the applicants during the course of their interviews following their arrests.’?’

Taking a more robust approach than Lord Lloyd, the government says that, having ‘looked very carefully’ at the point, it is satisfied that the power of arrest, ‘and the way it is used, are compatible with Article 5( l)(c) of the Convention’.30

This may indeed be true of the past, and even the present. But will it continue to be true if the arrest power is deployed against non-violent Irish subversives or against domestic ‘terrorists’? The government appears to assume that a vindication before the European Court offers perpetual protection from challenge, whereas in fact governmental victories in Strasbourg are invariably provisional, dependent on their particular facts and therefore vulnerable to re-litigation if a different situation should throw itself to centre stage. As the European Court explicitly said in Brogan, when addressing another tricky aspect of the arrest power, ‘[tlhe court is not required to examine the impugned legislation in abstructo, but must confine itself to the circumstances of the case before In the absence of specific offences to talk about, there is no reason to assume that the arrest under any new anti-terrorism law would be necessarily invulnerable to challenge under art 5( l)(c). What this will mean in practice remains to be seen; perhaps the most convenient remedy in the circumstances would be an action for damages for false imprisonment, with the lawful authority traditionally accorded the authorities in such circumstances being read down by the court by reference to art 5(l)(c). The public authority - in this case the police - will be required to exercise its discretion in a way which is Convention compatible. which will mean arresting under this provision only in rare, Brogan-style, circumstances.

28. Article 5( I)(c). The Convention case law is set out in D J Harris, M O’Boyle and C Warbrick Law of the European Coriiwirion on Huinan Rights (London: Butterworths, 1995) pp 1 15- 119; P van Dijk and G J H van Hoof T h e o n and Practice ofthe European Convention on Human Rights (The Hague: Kluwer Law International, 3rd edn. 1998)

29. Above n 7, at para 50. Cf Steel v United Kirigdoriz 23 September 1998, ECtHR. 30. Legislation Against Terrorism, above n I , para 7.14. Lord Lloyd’s views are at paras 4.13,4.14 and 8.13 of his report, above n 15. 31. Above n 7 at para 53 . The point was made in relation to the requirement that the purpose of the arrest be to bring a suspect before a competent legal authority. As is clear from Brogan, the well known Strasbourg concept of the margin of appreciation operates less deferentially (from a State’s point of view) in relation to art 5 than it does in relation to other articles. It remains to be seen the extent to which, if at all, the concept of the margin of appreciation will be transformed into a domestic principle ofjudicial deference and, if i t is, then the extent to which this principle will be deployed in anti-terrorism cases.

pp 354-359.


A key point in persuading the European Court in Brogan to find no breach of art 5(l)(c) was the fact that the applicants were all questioned about their membership of a proscribed organisation, something which was itself criminal under the Northern Ireland emergency law. This fairly easy route to concretising the criminal element in the arrest for terrorism would not be available with regard to domestic groups unless they too were also proscribed. This is a proposal with which the government flirts without coming to any specific conclusion; it ‘recognises [that] there would appear to be some advantage in extending proscription-type powers to non Irish terrorist groups, [but] it is also aware that there could be attendant d i f f i c u l t i e ~ ’ . ~ ~ Thinking of both domestic and international groups, the government considers that ‘[flor a start the potential scope of the list would be very wide (literally scores of groups could be possible candidates) and there would be a real risk of the list quickly becoming out of date . . .’33 It ‘would welcome views on whether the powers should be so extended’.j4 A highly material consideration, not mentioned in the Consultation Paper, would surely be the compatibility of the exercise of any such banning power with the freedom of association guarantee in art 11 of the European Convention.

The point is by no means clear-cut, even in respect of the current proscription power, much less the new, expanded version with which the government is toying. The key question is as to the inextricability of any such proscribed groups in campaigns of violence and terror. This is probably what makes the current proscriptions both in Britain and Northern Ireland secure from review, at least until the current cease-fires are firmly embedded, but what of the ‘literally scores of groups’ that could potentially be brought within the remit of the new power? It is not obvious that there are this many IRA-style organisations currently operating within Britain. But the more attenuated the connection between a proscribed group and violence is, the greater the likelihood that the control on association entailed in any such ban would be found wanting under art 11, as not being based on a sufficiently pressing need or as being disproportionate to the aim that the ban pursues. Particularly vulnerable would be bans on ostensibly political associations that the authorities decide are in fact ‘terrorist’ according to its expanded meaning of the term. In two recent European Court of Human Rights cases involving Turkey, the point of principle was developed in the context of illegitimate attempts to ban two political associations, the United Communist Party35 and the Socialist Party.36

It is remarkable that neither art 1 1 nor these very recent decisions warranted a mention in the Consultation Paper. But there are even more mysterious omissions in the document. The current power to deny access to a lawyer for terrorist suspects for up to 48 hours is to be retained?’ albeit with new safeguards revolving around audio-recording and possibly also silent video-recording of interviews, but there is no mention of its compatibility with the European

32. Legislation Against Terrorism, above n 1, para 4.16. 33. Above n 1. 34. Above n 1, para4.17. 35. United Communist Party of Turkey v Turkey (1998) 26 EHRR 12 I . 36. The Socialist Party v Turkey (1998) 27 EHRR 51. See generally on art 1 1, Hams, O’Boyle and Warbrick, above n 28, ch 12; van Dijk and van Hoof, above n 28, pp 586-601. 37. Legislation Against Terrorism, above n 1, para 8.33.

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Convention in the light of the well-known Murray case.3x Now it may be that the key point in Murray - on the right to silence - is to be addressed in other legislation in each jurisdiction to which the new terrorism Act will extend,39 but it remains nevertheless remarkable that the point is not dealt with at all. Similarly, the Consultation Paper would both retain and expand the current anti-terrorism laws on the forfeiture of property,4” but in making its recommendations it adverts to the terms neither of art 6(1) nor of art 1 of the First Protocol. The first of these guarantees fair procedures where the ‘civil right’ to property is being ‘determined’ by the authorities and the second protects the right to property from illegitimate interference by the state. While powers such as these may be Convention-compliant when being exercised against property holders who are themselves convicted terrorists, it does not follow that they are therefore also valid when deployed against third party owners whose property was at the relevant time either under the possession or control of the convicted person. Yet this latter situation is allowed for in the present law and is suggested for retention in the Consultation Paper.

One of the more controversial aspects of the government’s proposals is its suggestion to retain the current power enjoyed by the police in England and Wales to keep indefinitely fingerprints and other samples taken from persons arrested under the terrorism law even where they are neither charged nor convicted of any ~ f fence .~ ’ With these provisions capable of being deployed against internal dissent, a wide-ranging series of data-banks on a very great many individuals will become available to the police. However, the power would seem clearly to raise an art 8 point relating to the right to privacy, and it may be that, if it is exercised widely, the courts may be tempted to find the practice neither sufficiently pressing nor proportionate to its aim to pass muster as ‘necessary in a democratic society’ under art 8(2).42 The same may prove to be true of the other invasions of privacy liberally scattered through the current anti-terrorism law, relating in particular to the vulnerability of banks and other financial institutions to investigations into terrorist funding.43 On the other hand, the stop powers which are to continue to be available to the authorities at ports, and which

38. Murray v United Kingdom (1996) 22 EHRR 29. See also Quinn v United Kingdom (1996) 23 EHRR CD 4 1. 39. See eg cl55 of the Youth Justice and Criminal Evidence Bill (HL B 1 1 1 7) currently before Parliament. The government’s position is outlined at HC Debs, 1 December 1998, col 130. 40. See Legislation Against Terrorism above n 1, paras 6.5,6.7 and para 6.22. See also the new powers suggested in relation to the seizure of cash in transit (at paras 6.24-6.28) and the new powers of civil forfeiture (at paras 6.29-6.30) to both of which the same considerations would also apply. 41. Above n I , paras 8.37-8.43. 42. Compare Margaret Murray v Uni.ted Kingdom (1994) 19 EHRR 193, where the involuntary photographing of a suspect in an army screening centre was found by the European Court to be justified under art 8(2). However, as discussed above in relation to Brogun, it would be wrong to assume that because the exercise of a given power has been found Convention-compliant in an Northern Ireland-based case, it would therefore necessarily be protected from Convention challenge where it is deployed against the far wider category of persons included in the ‘terrorism’ definition after enactment of the proposed new law. 43. See Legislation Against Terrorism, above n 1, ch 6. For the Convention law on art 8 in this particular context see Niemietz v Germany (1992) 16 EHRR 97.


require no reasonable suspicion of any crime or even of terrorism in their initial phase,44 will be able to draw upon a supportive Commission decision if they are challenged under art 5.45 Similarly, the attenuation of the information required to be given to suspects arrested under the terrorism law has been held to be compatible with art 5(2)’s apparent guarantee of prompt information in such a situation.46 It is difficult to predict how the courts will respond to arts 16-18, incorporated provisions with very little track record in Strasbo~rg.~’ The truth is that the government cannot be sure when the Convention will strike or what the outcome of such a strike is likely to be. The only thing that can be predicted with certainty is that the Convention will henceforth hover around the entirety of our anti-terrorism law, both reformed and unreformed.

The interaction between the Human Rights Act and the new anti-terrorism legislation will, therefore, be fascinating to see when the latter is introduced in Parliament. As we have already noted, the sponsoring minister will be required, under s 19, to take a view on the compatibility of its provisions with the Convention rights. A distinction will need to be drawn between the direct exercise of power in the statute itself and the reposing by the Act of discretionary power in others. An example of the first would arise if the current proscriptions of the IRA and INLA in Great Britain were to be retained and were to be specifically set out (as they are now) in primary legi~lat ion.~~ This being an explicit infringement of the freedom of association guarantee in art 1 1 (1) - one of the incorporated rights in the Human Rights Act - it would need to be justified as within art 1 l(2) if the relevant minister desired to give the proposed measure a clean bill of health. But direct exercises of power in a statute are most unusual, in both this and other legidation. Far more normal is the second situation, where the statute gives the minister a discretion to act in certain defined situations. Thus, under the current law, the list of proscribed groups may (but need not) be added to if any group ‘appears to’ the Secretary of State ‘to be concerned in, or in promoting or encouraging, terrorism occurring in the United Kingdom and connected with the affairs of Northern Ireland’.49 The same kind of discretion is to be found in the current Act in relation to arrest and detention,” the port powers5’ and many of the sections dealing with financial assistance for terrorism.52 Just as significantly, many of the offences set out in the current PTA

44. Currently 12 hours, though the government proposes reducing this to nine, after which a reasonable suspicion will be required to support continuing detention: see Legislation Against Terrorism, above n 1, para 1 1.15. 45. McVeigh, O’Neill and Evans v United Kingdom (1981) 25 D & R 15. The Commission held that the stops fell within art 5( I)@) as being designed ‘to secure the fulfilment of any obligation prescribed by law’, the obligation in the instant case being the requirement to submit to further examination at a port of entry. See further Harkin v United Kingdom (1986) 48 D & R 237; Lyttle v United Kingdom (1986) 9 EHRR 381. 46. Fox, Campbell and Hartley v United Kingdom (1990) 13 EHRR 157; Margaret Murray v United Kingdom (1994) 19 EHRR 193. 47. For what there is, see Hams, O’Boyle and Warbrick, above n 28, ch 17; van Dijk and van Hoof, above n 28, pp 747-761. 48. See Sch 1 to the Prevention of Terrorism (Temporary Provisions) Act 1989. 49. 1989 Act, s 1(2)(a). 50. 1989 Act, ss 14 and 15 and Sch 3. 51. 1989 Act, s 16 and Sch 5. 52. See generally 1989 Act, Pt 111.

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require the sanction of the law officers before they can be initiated, which was precisely the discretion that was in issue in e x p K e b i l e r ~ e . ~ ~ In other words, what will really matter will not be the direct wording of the proposed new anti- terrorism Act but the way in which the discretion to be accorded officials under it will be exercised. If this is right, then it would be perfectly possible to assert that the clauses in such a proposed measure did not in themselves infringe the Convention, whilst being aware that the discretionary powers liberally handed out under such an Act would be likely to be severely constrained by the need for compatibility with the Convention.

Where such an analysis would appear to leave parliamentary sovereignty is less certain than was believed to be the case when the Human Rights Act was being debated in Parliament. In this regard, ex p Kebilene is once again instructive. The prosecutions in that case were brought under a piece of primary legislation. Naturally the relevant sections could not bite without the assistance of a series of public officials, including the DPP. Equally naturally, given the traditional forms deployed in UK law, the type of responsibility accorded the DPP was that of a discretionary power rather than a duty to prosecute. The Divisional Court was able to fasten on this discretion, and require it to be exercised in a way which took into account the probable relevance of the Convention to any appeal arising from the prosecutions that were being proposed for (in this case continued) authorisation. After implementation, the situation will be more straightforward, with the DPP being required to exercise the discretion in a Convention-compatible way. Where the authorisation to proceed would necessarily involve prosecution for an offence which the courts considered infringed the terms of the Convention, therefore, s 6( 1) on its face would seem to suggest that the only valid engagement with the issue from the DPP would be to refuse to authorise the prosecution. If this were to happen, the offence would then become a dead letter, still sovereign in its legislative cocoon, but permanently isolated from reality by the inability of officials lawfully to invoke it.

The ramifications of this for parliamentary sovereignty would clearly be immense. However, s 6(2)(b) has sought to deal with the problem by disapplying s 6( 1 ) where the relevant act of the public authority is under primary legislation ‘which cannot be read or given effect in a way which is compatible with the Convention rights’ and where ‘the authority was acting so as to give effect to or enforce those provisions’. This situation does not cover the imposition of a duty to act, since s 6(2)(a) explicitly applies to such a situati0n,5~ so it must be intended to cover certain zones of discretion - but which ones? To make matters even more complex, ‘an act’ under s 6 includes a ‘a failure to act’.55 Where the discretion is to chose certain paths which are Convention-compatible and others which are not, it is unlikely that s 6(2)(b) has any application; the public authority will be under the ordinary s 6( 1) duty to act in a Convention-compatible way. But where the discretion is as to whether or not to invoke a provision which is inherently in conflict with the Convention, then s 6(2)(b) does seem to come into play. It would appear that, in such a situation, the public authority will retain its discretion to act, and that if it chooses to act to bring such a provision to life

53. See 1989 Act, s 19(1). 54. ‘Subsection (1) does not apply to an act if (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently.’ 55. Section 6(6)


then s 6(2)(b) demands that the courts not strike down such conduct solely on the ground of its infringement of s 6( 1). But clearly, in coming to its decision whether or not to act, the authority will be under a traditional judicial review duty to take into account all relevant considerations and not to act irrationally. So the decision in such a situation will need to have taken the Convention into account and will need also to be capable of being shown to be not irrational or unreasonable in its conclusion that a piece of law which is in conflict with a person’s statutorily defined ‘human rights’ should nevertheless be deployed against them. It may be that the courts will make this a high hurdle for public authorities inclined to seek the safety of s 6(2)(b) absolution for their acts, but it is equally clear that the higher the standard which such authorities must meet, the less effect will the retention of parliamentary sovereignty have as a matter of legal reality.

It may be that the great constitutional debates of the future, about the respective roles of parliament and the courts, will be fought out over the battleground of the complex but seemingly innocuous s 6(2)(b) of the Human Rights Act 1998. The peculiarity of this situation will in all probability be modified by two points, post-implementation. First, the courts will then have available to them s 3( 1) of the Human Rights Act, which as we have seen will allow sections of Acts to be interpreted ‘[slo far as possible’ to accord with the Convention. This was not an interpretative device available to the Divisional Court in exp Kebilene so the judges in that case were not able to perform radical surgery on the PTA provisions before then so as to keep the sections alive, and therefore to preserve the reality of an executive discretion whether or not to invoke them. Secondly, future cases, and possibly even the House of Lords when ex p Kebilene comes up for appeal, might not want to be quite so definitive as the Divisional Court in their statements about Convention compatibility in ubstructo. As noted above, and as the European Court of Human Rights has so frequently reminded us, the compatibility of any given law with the Convention depends on the factual context of the cases before it. On the other hand, the domestic courts might feel that the legislator is entitled to more general guidance than the escapist legal remark that it all depends on a particular set of facts.

LESSONS FROM LORD DIPLOCK

The other point that the Lords may or may not find it necessary to revisit in ex p Kebilene concerns whether or not the Divisional Court was right to conclude that the relevant PTA provisions infringed art 6(2). The question is more complex than it might first appear. In the report that was to form the basis of Northern Ireland’s emergency provisions law during the present era of subversive violence,” Lord Diplock directly addressed the extent to which the European Convention restricted the government’s room for manoeuvre in this area. The Diplock Commission did not ‘seek to abrogate the rule that on a criminal charge the prosecution must prove its case or, as it is expressed in art 6(2) of the European Convention: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”’s7 This requirement was ‘not

56. Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland (Chairman: Lord Diplock) Cmnd 5 185 (London: HMSO, 1972). 57. Above n 56, para 61.

378 Legal Studies

breached by a provision that upon proof by the prosecution of particular facts capable of implicating the accused in the offence with which he is charged the onus shall lie upon him to furnish an explanation of them which is consistent with his inno~ence’ .~~ It was a fact that ‘[llegislation in the United Kingdom as well as in Northern Ireland ha[d] long provided that if the accused [was] found to be in possession of firearms or explosives the onus of proving that he had them for a lawful purpose shall lie on him.’59 The statutory provision which flowed from the Diplock report was restricted in its ambit to a reversal of the burden in respect of the possession of these inherently incriminating itemsm It was not until 1991, after a report by Lord Colville that did not address the European Convention point, that the equivalent of the s 16A provision impugned in ex p Kebilene was enacted in Northern Ireland.6i

It may be thought remarkable that a report on emergency law in Northern Ireland dating from 1972 should have paid such especial attention to the European Convention, particularly when it is remembered that there were then no cases of significance to which a British legal audience could have been directed.62 But in his chapter on the ‘basic problem’, Lord Diplock begins by identifying the ‘minimum requirements of a judicial process’ in normal times as being those set out in art 6 of the Convention.h3 The Diplock Commission found itself ‘unable to recommend any changes in the conduct of a criminal trial of terrorist offences in a court of law in Northern Ireland which would have the result that it no longer complied with the minimum requirements of art 6 of the European Convention.’@ Therefore, any ‘changes in procedure which we propose for adoption by courts of law should, we think, fall within those minimum requirement^'.^^ It would be wrong to deduce from this that all changes to the law needed therefore necessarily to be beneficial to potential accuseds and other suspects. Lord Diplock was well aware of the complex, double-edged nature of the procedural provisions in the Convention. Thus, his recommendations in relation to the admissibility of confession evidence took the then law well beyond its previously narrowly restrictive position and did so by explicitly rooting his proposals in art 3 of the Convention, whereby henceforth confessions would be inadmissible only where they could be shown to have been obtained by the use of torture or inhuman or degrading treatment.66 Even more importantly, Lord Diplock had noticed that the Convention did not protect jury trial, so that the recommendation for which he is most remembered, and which led to the institution of the non-jury courts in Northern Ireland which still bear his name, could be presented as in compliance with the Convention’s minimum

58. Above n 56, para 61. 59. Above n 56, para 63. 60. Northern Ireland (Emergency Provisions) Act 1973, s 7. 61. Northern Ireland (Emergency Provisions) Act 1991, s 30. See Viscount Colville Review of the Northern Ireland (Emergency Provisions) Acts 1978 and 1987 Cm 11 15 (London: HMSO, 1990) para 2.7ff. 62. Though of course the inter-state application between Ireland and the United Kingdom would have been in its early stages: see Ireland v United Kingdom (1978) 2 EHRR 25. 63. The Diplock report, above n 56, para 12. The article is reprinted in its entirety in a footnote. 64. Above n 56, para 14. 65. Above n 56, para 14. 66. Above n 56, paras 89-90.


standard^.^' A different result would have been reached had it been the principles of the common law which had formed the ethical focus of his Commission’s work.

In the short term, the effect of the Human Rights Act on the United Kingdom’s anti-terrorism law is likely to be dramatic. Already, the Home Office will have found itself having to take seriously the various Convention points that will have emerged in the course of its consultation on the government’s proposals, not only because of their possible merit but also because they now have the potential to underpin an emasculation by the judicial branch of many of the government’s anti-terrorism proposals after they have been translated into legislation. This must be particularly the case if, as the government desires, the edifice of anti-terrorism law is to be wheeled into action against various shades of domestic dissent. If such legislative powers were to be robustly exercised in a time of relative domestic tranquillity, the need to establish their proportionality and the pressing social need for such rigorous application would add a new and complex constraint on governmental power. Over time, it is probable that the government will learn to live with the Convention, and to tailor its proposals so as to insulate them from Convention challenge. It may eventually reach the level of sophistication displayed 27 years ago by Lord Diplock, when he contrived to present an unprecedented erosion of constitutional principle as a vindication of human rights.68 Already there are signs that the Home Secretary’s recent decision to reduce the availability of jury trial to criminal defendants will be defended by, among other arguments, pointing to the absence of the right to a jury in the Convention and the non-availability of this right in other Council of Europe jurisdictions. It will be in circumstances such as these that the challenge to civil libertarians posed by the European Convention will become most apparent: how are freedom and liberty to be protected against an attack that boasts of its Convention-compatibility? It is a question to ponder while civil libertarian activists feast on the short-term mayhem that lies ahead.

67. See above n 56, ch 5 of the Commission report. 68. See eg the debate on the Criminal Justice (Terrorism and Conspiracy) Act 1998 at HC Debs, 2 September 1998, col748 (the Home Secretary).

Documents

Terrorism and human rights: a case study in impending legal realities