With the unfortunate events occurring in the UK the past month, Prime Minister Theresa May announced she will ‘tear up any human rights laws that will prevent terror legislation’. This announcement evidently sparked controversial debates, leaving many to question if we can tackle terrorism without intruding on every citizen’s fundamental rights.
We hear from two specialists on the matter: Nick Cartwright who is a Senior Lecturer in Law at the University of Northampton and Director of Northamptonshire Rights and Equality Council, touches on the history of human rights, bringing up the notion that ripping up human rights will simultaneously destroy our value of liberty; we also hear from Allan Briddock from One Pump Court Chambers, who evaluates further on Theresa May’s statement, whilst discussing current enforcements in place.
Nick Cartwright, Senior Lecturer in Law at the University of Northampton and Director of Northamptonshire Rights and Equality Council
With less than two days of her disastrous general election campaign left to run, Theresa May had stated that the laws in the Human Rights Act which prevented the government to counter terrorism, should be ripped up. This left me and many others pondering which human rights laws she felt needed “ripping up”. The more cynical pondering lead us to think that if it was easy – and tearing up human rights laws in a State without a written constitution is depressingly easy – the woman who had served as Home Secretary for seven-years, hadn’t already done so.
The reality is two-fold. Firstly, our relatively limited human rights laws were simply not a factor in the atrocities committed in Westminster, Manchester or Borough Market nor, later, at the Finsbury Park Mosque. Secondly, to think that you can rip up human rights for some, but not for others, demonstrates a fundamental misunderstanding as to the very nature of human rights. It is this second point on which I wish to dwell.
There are a variety of reasons as to why one might believe human rights are worthy of respect and this explains the myriad approaches taken to protect fundamental freedoms in different jurisdictions. The UK approach, from which the European approach developed, is grounded both in a belief in an irreducible value of personhood or humanity and a belief in liberalism. The belief in the irreducible value of personhood has been credited separately to both our Judaeo-Christian heritage and the more secular philosophy of Immanuel Kant, although it most probably a product of both and best expressed through Kant’s categorical imperative to: “treat people as an end in themselves and never as a means to an end.” Our liberal tradition, for better or worse, is grounded in the work of John Stuart Mill who somewhat disingenuously, but adequately for my purposes, is paraphrased through the idea that ‘your liberty to swing your fists ends just where my nose begins’.
To rip up human rights necessarily involves diminishing one, or both, of these principles.
Human rights are different from other forms of legal rights in that they are universal, belonging to us all as human beings because of our shared personhood. To argue that we can rip these rights up for some, but not others, is to say that some of us have more personhood than others. If we rip up the rights of foreign nationals, we are arguing that the rights of what some call ‘our own’, trump the rights of those perceived as ‘other’, because personhood attaches to nationality. This is simply racist. This is of course to hold that personhood is binary, but all of the Abrahamic religions as well as the Kantian traditions accept this – we either are sanctified as part of a creation narrative or separate from the rest of nature because of our rationality, or both. Personhood is not something that admits of amounts or is earned or lost, rather it is both irreducible and incommensurable.
Alternatively, it could be argued that the human rights of us all should be ripped up – an affront to liberty. However, liberty is already affronted both by the limits that currently exist on human rights and by the very human rights that exist to protect it. The vast majority of human rights are not absolute, but can be restricted in the interests of States and governments; your right to free expression butts up against my right to, for example, privacy – a long way from where our fists meet each other’s noses. So if liberty is not absolute, but already restricted in the interests of the State, what further restrictions, through ripping up of human rights, could be achieved? The only rights that cannot be derogated from are: the right to life; the right to freedom from torture and inhuman and degrading treatment and the prohibition on slavery. Accepting that slavery is not really a counter-terrorism issue, the question that remains to be asked is do we really want to rip up human rights laws if that means that yours and my rights to not be killed or subjected to torture, is limited because we wish to restrict the rights of the ‘other’: the person who looks a little different, sounds a bit different, or thinks a bit different. Is it necessarily to limit the rights of us all?
I would go as far as to say that the ripping up of human rights, the ditching of our belief in the fundamental value of personhood and humanity and the further restrictions of liberty, would be to rip up the values and the way of life that all who oppose terrorism in all its forms claim to defend.
Allan Briddock, Barrister at One Pump Court Chambers specialising in: Personal Immigration, Business Immigration, Public Law and Civil Law
Theresa May puts Human Rights Laws in the Firing Line
Earlier this month, Prime Minister Theresa May once again put human rights laws in the firing line. In a comment made in a speech on the eve of the 2017 General Election and less than a week after the London Bridge attack, she vowed to beef up counter-terror powers by restricting “the freedom and the movements of terrorist suspects when we have enough evidence to know they present a threat, but not enough evidence to prosecute them in full in court . . . And if human rights laws stop us from doing it, we will change those laws so we can do it.”
What Theresa May is referring to here are Terrorism Prevention and Investigation Measures, known as TPIMs, which place restrictions on where a person can live, who they can spend time with, their access to phones or computers, where they can travel to, and so on. The Home Secretary can impose a TPIM where she has reasonable grounds to believe the person to be involved in terrorist activity.
Following the failure of control orders, TPIMs are the Home Office’s second attempt at a legal mechanism that places restrictions on those who the Security Services suspect may go on to commit a terrorist attack, but where they lack the evidence to prosecute them.
Most lawyers will remember control orders, the TPIM’s predecessor, which were widely criticised, not least by the Supreme Court in a successful challenge in 2010. In Secretary of State for the Home Department v AP the Appellant, an Ethiopian national, was subjected to a control order that confined him to a flat for 16-hours a day and forcibly relocated to a town 150 miles from his family. Lord Brown gave the lead judgment holding that a control order is a deprivation of liberty in breach of Article 5, in conjunction with the breach of Article 8 right to respect for private and family life.
Following the Supreme Court decision, and urged on by the Conservative Party’s coalition partner, the Liberal Democrats, then-Home Secretary Theresa May scrapped control orders in 2010. In their place, TPIMs were meant to be more effective and significantly, compliant with human rights law. The number of hours someone had to spend in their home was reduced, and you could no longer be forced to move away from your family and community.
These concessions were short lived. In 2015, the Counter Terrorism and Security Act reinstated the condition of forced relocation, added further restrictions on the ability to travel and required the person to attend appointments to aid de-radicalisation.
Turning back then to Prime Minister’s comment, it seems she has made two assumptions. First, that there is a large group of people who are a threat to national security but have not committed any crimes and the only way to prevent them launching an attack is to impose restrictions on their freedom.
Second, if we rip up human rights laws, more stringent conditions can be imposed on those who have been radicalised.
Unfortunately for the Prime Minister, the data undermines the first assumption. TPIMs, like control orders, have never been widely used. Between 2005 and 2011, only 52 people were subject to control orders. By the end of 2011, only nine were in force. This number dropped to three by August 2015.
Perhaps one of the reasons why they have never been widely used is the breadth of current terrorism legislation, which means that where someone does pose a threat, their freedom can usually be curtailed using other methods. For example, Schedule 7 of the Terrorism Act 2000 gives the power to stop and search a person at an airport, to search their belongings and hold them up to nine hours, without the need to suspect that person of involvement in terrorism of other criminal activity. Where someone is suspected of committing a terrorism offence, they can be detained and questioned for 14 days prior to being charged (the limit for non-terrorism offences is 72 hours). On top of this, the Act also criminalises a wide range of acts from being in possession of information that would be useful to someone committing or preparing an act (Section 58), to funding terrorist organisations (Section 17) to preparing for an attack (Section 57). It seems possible that TPIMs are not as necessary to counter-terrorism as Theresa May’s comment suggests.
Turning then to Theresa May’s second assumption that human rights laws could be changed to allow for more stringent conditions to be imposed; she again gets into difficulty. Even if dramatic steps were taken to repeal the Human Rights Act and withdraw from the European Convention of Human Rights, would it then be possible to subject someone to a curfew of 16 hours or more? Possibly not. The English common law of habeas corpus mandates the deprivation of liberty is prima face unlawful. These principles were affirmed in the landmark Hardial Singh case, decided in 1984 without reference to the ECHR, imposed limits on when someone can be detained. These limits mean that a person can only be detained for a set period of time and for a reasonable period. It is arguable that even without the Human Rights Act, cases like Hardial Singh and the doctrine of habeas corpus may place limits on the Prime Minister’s ability to curtail people’s freedom of movement.
Given the legal difficulties in imposing more stringent restrictions on terrorism suspects, the practical problems with TPIMs as they currently stand, and their lack of use over the preceding twelve years, it is hard to see TPIMs as the key to reducing the threat of terrorism in the UK.