TWO competing voices sound in the UK today. “Terrorism must be stopped,” says
one, “whatever it takes.” “Human rights are sacrosanct,” cries the other,
“and nothing would justify their abrogation.” Tony Blair stands firmly in
the former camp. “The rules of the game are changing,” he declared,
signalling his Government’s willingness to deport terror suspects to
countries known to use torture.
This essay will argue first that the “rules” need not change. There is no
necessary opposition between either terrorism or counter-terrorism and
principles of fundamental human rights. Respect for the “inherent dignity
and . . . equal and inalienable rights of all members of the human family”
as enshrined in the Universal Declaration of Human Rights (UDHR) and the
European Convention provides a moral framework for social and political
life. “Human rights ” is not a body of absolute values, in this
understanding, but rather a prism through which to make policy decisions
that are humane, equitable and, most importantly, effective.
Secondly, and as a result, there can be no hard and fast “balance” between
individual convention rights and the collective needs of national security.
The adjudication of competing rights claims in a context of terrorist threat
must be undertaken continually by national courts using the twin tests of
necessity and proportionality.
The fact of a terrorist attack cannot place its perpetrator outside the scope
of human rights. Conor Gearty characterises terrorism as a particular
combination of methodology and motivation, the deliberate or reckless
killing of civilians or damage to property in order to convey a political
message to a third party. Kofi Annan similarly emphasises political intent,
the purpose of intimidating a population or compelling a government or
international organisation to abstain or to act. If terrorism is understood
as a politically motivated crime, however, a terrorist will always be
defined by and against the extant State. The discourse of human rights, in
contrast, is deliberately supranational, a post-Holocaust expression of
inalienable humanity. To entitle politicians to place terrorists in a
separate category of moral entitlement would deny such universality and so
frustrate the very basis of the UDHR.
It is a misconstruction, moreover, to consider security policy as necessarily
counter to human rights principles. Individual convention rights cannot be
understood as absolute and unconditional moral entitlements, for they are in
constant competition. My rights to freedom of expression, assembly and
association might conflict with my neighbour’s to respect for private and
family life. What is absolute, rather, is a fundamental principle of respect
for human rights necessitating the considered adjudication of competing
rights claims. Thus was the rationale of the UDHR drafters, to assert a
minimal framework of respect in human relationships that must endure
regardless of circumstance. The fact of terrorism does not invalidate that
framework, any more than terrorists can place themselves outside it. Rather
than wondering “where to draw the line”, therefore, we should be demanding
assessment of the competing claims of individual rights and collective
security within a basic and unassailable matrix of respect for human dignity
and rights.
In finding a mechanism for such adjudication, proportionality is key. The
concept of “necessary and appropriate” limitations to individual rights
permeates the European Convention and the UK Human Rights Act, and has been
integral to the jurisprudence of the European Court of Human Rights. Thus
Articles 8 to 11 allow restrictions only as “necessary in a democratic
society”. Article 15, most explicitly, allows states to derogate from its
convention obligations “ 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”. Such derogation should not be seen as a
rejection of human rights per se, but rather a changing assessment of the
weighting of competing rights claims. Lord Woolf affirmed the principle
recently in Gillan, a UK case in which a student and journalist were
detained using police “stop and search powers” under the Terrorism Act 2000.
“The court will . . . place in the scales the authorities’ evaluation of the
action needed to avoid the terrorist incident,” he held, “as against the
court’s assessment of the effect on the member of the public.” Lady Justice
Arden reached the same conclusion, writing extra-judicially in 2005. If the
action that the authorities demand cannot be shown to be necessary and
proportionate, it cannot be acceptable in a democratic society committed to
respect for human rights.
Thus, in A v Secretary of State for the Home Department, this year, the House
of Lords ruled that while derogation from Article 5 of the convention was a
necessary response to the terrorist threat to the UK, the preventive
detention of terror suspects was not proportionate to the exigencies of the
situation and was thus unjustifiable. The same might be said of the proposed
incitement to terrorism offence in the UK Prevention of Terrorism Bill 2005.
While some restriction on the individual right to freedom of expression
might be necessary in order to further collective claims to security, an
offence of “reckless” incitement to terrorist violence, potentially
criminalising journalists or political commentators, is far from
proportionate. It is not the case that human rights considerations frustrate
security measures, therefore, rather that using standards of proportionality
such measures can be refined and developed.
In a 1999 ruling banning the torture of detained terror suspects, Aharon
Barak, the president of the Israeli Supreme Court, wrote that while
“sometimes, democracy must fight with one hand tied behind its back . . .
preserving the rule of law and recognition of individual liberties
constitute an important component of its understanding of security”. It is
not individual rights in isolation that are critical, Barak implies, but
recognition of the role of “human rights ” as a defining principle. In such
an understanding there is no opposition between terrorism and human rights.
The latter provides the framework in which the former can be understood and
dealt with. These “rules”, themselves a remarkable response to human
barbarity, must not be changed.
“Can Western society protect itself without abandoning the values which define
its identity and so make it worth protecting?” asked David Pannick, QC. The
answer is clear — it can, and it must.
The winners and runners-up
Amy Rogers, a history graduate from Cambridge who plans to go
to the Bar, scooped the top prize of £3,500 in this year’s The Times Law
Awards competition, in association with One Essex Court, the chambers of
Lord Grabiner, QC.
Miss Rogers, 22, is on a graduate diploma course student at City University
and then plans to take the Bar Vocational Course with a view to going into
public law.
“Law is a great career choice — it will keep challenging you for the rest of
your life,” she said. “And I would like to go to the Bar because you think
on your feet all the time; and there’s a great atmosphere around the courts
and in chambers.”
Money was a worry, she added, particularly as “everyone seems to have such
huge debt”.
“But there comes a time when you just have to have confidence in what you want
to do and go with it.”
She is financing herself through training with an interest-free “professional
development” loan from NatWest and a scholarship from Lincoln’s Inn. But the
prize money would make a huge difference, she said.
This year’s awards prompted a record 250 entries on the topic of “Terrorism v
human rights: Where do you draw the line?” The judging panel, led by the
Lord Chancellor, Lord Falconer of Thoroton, included Lord Mance, the law
lord; Lord Grabiner, QC; Robert Thomson, Editor of The Times; and David
Wolfson, of One Essex Court.
The prizes were presented at a gala reception in Lincoln’s Inn, London, hosted
by One Essex Court.
The second prize of £2,500 went to Tim McAtackney, a
third-year student at the University of Ulster, who plans to go into
journalism; and the third prize of £1,500 to Alexander Roy,
a law graduate who has since completed an MSc in internet technologies at
the University of Luton.
The runners-up, who each received £1,000, were Charles Dawson,
a graduate diploma course student at Glagow Graduate School of Law; Emma
Douglas, a law student at the London School of Economics; and Andrew
McIntyre, a student at New College, Oxford.
