If the outcome of the fear of terrorism is incompatible with a human right, for example if a piece of legislation is in direct contravention of an article or articles of the convention of human rights. Then it is possible for anyone who suffers an injustice to seek reprisal from the European Court of Human Rights. A judgement against the country could be damaging for a government’s credibility. Everyone is entitled to human rights; even those who have murdered hundreds of innocent people still have civil liberties which should be protected by law. While this in theory is strictly true in practice not everyone is able to enforce their human rights. This mainly occurs in lesser developed countries where people are unaware of the provisions available. The situation was relatively similar in the UK until the drafting of the Human Rights Act 1998.
As mentioned previously terrorism has been legislated against for many years. However since the tragic attacks in 2001, another piece of legislation has been drafted and ratified The Anti-Terrorism, Crime and Security Act 2001. The Act was given the royal assent in December of 2001 just 3 months after the events of September the 11th. This is a great example of how the fear of terrorism can influence the law making system. The Act allowed the government to derogate article 5 of the European Convention of Human Rights and allow indefinite detention without trial for non-UK nationals, it also allowed for evidence to be used which had been obtained from tortured interviewees. The Terrorism Act of 2000 although made before the terrorist attacks was a good illustration of government’s response to the fear of terrorism. It allowed police to stop and search people with no reasonable suspicion. It redefines “terrorism” classifying it not only as a threat to public safety but also a threat to the power of the state thus meaning that some public protesting could be identified as terrorist activity.
The greatest criticism of the Anti-Terrorism, Crime and Security Act is the government’s avoidance of article 5 of the European Convention of Human Rights and their own flagship piece of legislation the Human Rights Act. Article 5 is the right to liberty and protection against unlawful detention. Lord Steyn, a serving law lord, is quoted as saying ‘In my view, the suspension of article 5 of the European convention of Human Rights – which prevents arbitrary detention- so that people can be locked up without trial when there is no evidence on which they could be prosecuted is not in present circumstances justified.” The Anti-terrorism, Crime and Security Act 2001, in Chapter 24, section 23 is the section which allows the derogation. The Derogation is allowed under the Convention but should only be used “in time of war or other public emergency threatening the life of the nation… to the extent strictly required by the exigencies of the situation” the question of weather this derogation was expected from the government by the courts and from the courts by the government. In the Act there are provisions for an appeal process against indefinite internment. This is in the form of the special immigration appeals committee. The committee found that the legislation was incompatible with article 14 of the convention and was indeed discriminatory. However this decision was over turned in the court of appeal, where Lord Woolf stated that in cases involving national security, the court was required to show considerable deference to the home secretary because he was better qualified to decide what action was called for. This statement in my opinion shows a disturbing injustice. However the courts have concluded that the detention is justified.
Conclusion
In essence the fear of terrorism has not resulted in a direct contravention of article 5, however this position is only true due to the government “opting out” of this article of the Human Rights Act. A position which in my opinion is unjust, simply legislating in order to avoid certain sanctions is irresponsible. The anti terrorism crime and security act in parts is a definite contravention of the Human rights Act article 14 – the enjoyment of protected rights free from discrimination. As the act only allows non-UK nationals to be detained indefinitely there is obvious discrimination. Some may argue that the violation of a small number of people’s rights is acceptable if it will be beneficial for the nation’s right to life. This is a view which although may seem sensible is radically unjust on that small proportion who are denied basic human rights. However I do believe that with a touch of diplomacy it would be possible for human rights to effectively co-exist with the nation’s fear of terrorism.
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