[W]e must never cease to proclaim in fearless tones the great principles of freedom and the rights of man which are the joint inheritance of the English-speaking world and which through Magna Carta, the Bill of Rights, the Habeas Corpus, trial by jury, and the English common law find their most famous expression in the American Declaration of Independence.
“Iron Curtain Speech”, Winston Churchill
The Human Rights Act 1998 was described to benefit only the undeserving people, such as terrorists. This essay will prove that the HRA 1998 is not a charter for terrorists. It will be found that the bad reputation of the HRA is coming from the fact that there was no strong narrative about the HRA, therefore, allowing tabloids to use their clandestine imagination. Also, it will be found that the HRA does not undermine the ability of the British security forces to combat terrorism and that terrorist suspects are as worthy beneficiaries of human rights protection like any other. Further, this essay will prove that the Human Rights Act is hardly just a tool for terrorists because when no other remedy will apply, everybody in the UK, from poor person to prince, can actually profit from the Human Rights Act. At the end, it will be shown that a new Bill of Rights will not help the state to combat terrorism.
The Human Rights Act 1998 has suffered from bad press since its existence.[1] It was described as a “villains’ charter”, which benefited only the undeserving people.[2] To find out whether the HRA is a charter for terrorists and whether it should be replaced, this essay will examine different views of academic and political actors. It will also look at a number of primary law-cases, statutes and treaties as well as academic journal articles, parliamentary reports and command papers. The first section of the essay will present the reasons, for which, the HRA 1998 has gained bad reputation. The next section explores whether the HRA undermines the ability of the British security forces to combat terrorism. Section 3 will examine whether terrorism suspects are as worthy beneficiaries of human rights protection as any other. Section 4 will look at who can actually profit from the Human Rights Act. The final section will examine whether a new Bill of Rights can help the state to combat terrorism.
The poor reputation of the HRA is coming from the fact that it is frequently mistaken for a “European law” enforced on the UK by the European Union.[3] Julian Huppert stated that the fact that the HRA 1998 is created according to the principles from the European Convention of Human Rights creates more confusion, as people assume, mistakenly, that it refers to a European Union scheme to modify the British way of life.[4] In fact, the European Convention of Human Rights has nothing to do with the Treaty of Rome (1957), which instituted the European Economic Community, and it has its own institutions, which are the Council of Europe and the European Court of Human Rights.[5] These institutions function separately of the European Union.[6] Moreover, the ECHR was a perfectly “Conservative document”, inspired by Sir Winston Churchill, negotiated and drafted largely by the Conservative politician David Maxwell Fyfe (later Lord Chancellor Kilmuir).[7] The human rights were violated on a massive scale in the twentieth century.[8] Sir Winston Churchill was determined that the rights, such as, the right to a fair and public hearing,[9] the right not to be deprived of liberty without charge,[10] and the right not to be subject to inhuman or degrading punishment,[11] for him the quintessence of civilisation, should be publicly embodied in the European Convention.[12]
The bad reputation of the HRA is also coming from the fact that there was not a deep constitutional connection between the HRA 1998 and British people.[13] Francesca Klug maintained that there are three factors, which explain this. Firstly, the HRA came out like ‘a bolt out of the blue to most people’.[14] Secondly, there was no “strong narrative” about the HRA, therefore, allowing tabloids to use their clandestine imagination.[15] Finally, the most important factor was that the HRA was too successful in challenging the government’s comfort.[16] Francesca Klug claimed that if the 2001 terrorist attacks had not occurred in the United States on September 11 – about 1 year afterward the Human Rights Act came into force – the Act would have become a recognised part of the United Kingdom’s constitutional and legal background.[17] Julian Huppert posited that the mistake made with the HRA 1998 was in failing subsequently to clarify its benefits[18]. One of the major problems with the HRA is the lack of respect for it amongst media, politicians and public figures, which building upon lack of knowledge is very possible to have ingrained lack of respect for the 1998 Act amongst the general public and public authorities.[19] Nowadays, media is a powerful instrument in generating negative publicity of the HRA 1998; even organisations such as the Guardian and BBC are capable of spreading untruths about the Human Rights Act[20]. Moreover, media was accused of providing ‘the oxygen of publicity on which terrorism thrives’[21]. The former Prime Minister of Israel Benjamin Netanyahu suggested that “unreported, terrorist acts would be like the proverbial tree falling in the silent forest”.[22] It was suggested that control of the media is an important weapon in combating terrorism[23]. However, a significant group of scholars thinks that media does not affect or cause the occurrence of terrorist activity as terrorism existed long before the mass media existed[24].
Sir Geoffrey Bindman QC argued in his journal “Defending our Rights” that the purpose of the HRA 1998 is often forgotten.[25] The purpose of the act was to “bring rights home” by allowing UK courts to establish liability under the Convention.[26] Before the coming into force of the HRA 1998, British people were forced to go to Strasbourg court in order to have their rights protected.[27] They had to endure an expensive and long process of appealing to a Strasbourg court.[28] The Labour Party, under John Smith’s leadership, finally agreed to incorporate the ECHR in domestic law in 1993.[29] Tony Blair, who was previously against incorporation of the ECHR, followed the John Smith line.[30] Together, with Derry Irvine, he created the policy foundation to give effect to ECHR.[31] Since the HRA 1998 allowed British judges to establish liability under the Convention, British courts have built up a body of British case law in the human rights area.[32] If the HRA will be repealed, the judicial process will be moved abroad.[33] As a result, the Strasbourg court will make decisions about Britain; it will also reinforce those heavy costs of appealing to a Strasbourg court.[34]
The most emotive argument against the HRA concerns national security, namely, that the HRA undermines the ability of the British security forces to combat terrorism.[35] After the 9/ 11 attacks of terrorism on the Twin Towers and Pentagon in the United States, it was argued, that to some, the HRA 1998 gives a lot of freedom and acts as an impediment in the fight against serious crimes, such as terrorism.[36] Is that true? Under the HRA, courts are balancing human rights against security; significant rights may be breached in order to defend national security.[37] For example, Article 8 (2) of the HRA 1998 – ‘the right to respect for his private and family life’- allows public authorities to breach this fundamental right in order to protect national security. Also, the HRA does not impede those, who are a threat to national security, from being deported.[38] What the HRA does do is to stop the Government from deporting terrorist suspects back to countries, where they are likely to be tortured.[39] Torture or ‘inhuman or degrading treatment or punishment’ is prohibited by the Article 3 of the European Convention on Human Rights. Unlike other articles, Article 3 is an absolute and unqualified right;[40] there are no exceptions or limitations on this right, even in times of war.[41] In Aksoy v Turkey,[42] the European Court of Human Rights said that even in the most challenging circumstances, such as the combat of terrorism and crime, there are no exceptions or limitations on this right. The reason for this is that torture is ‘an intimate exercise of pain – it is inflicted one on one – which terrorizes and humiliates the victim.’[43] For Jeremy Waldron, torture is intrinsically evil, mainly because of what it does to the victims[44]. He says of torture that “it involves the deliberate, studied, and sustained imposition of pain to the point of agony on a person who is utterly vulnerable, prostrate before his interrogator”.[45] Torture is also regarded as an international crime: a crime against humanity[46] and a war crime[47]. Also, Article 3(1) of the United Nations Convention against Torture[48] further supports the absolute nature of freedom from torture: it prohibits expulsion, return or extradition of persons to other countries where there is a real risk that they would be tortured.[49] Moreover, prohibition on torture has become part of customary international law[50].
Because Article 3 of the ECHR is an absolute and unqualified right, the European Court of Human Rights held, in Chahal v United Kingdom,[51] that it is not possible for the Government to balance the threat inflicted by a person to national security against the risk of Article 3 maltreatment if that person is deported to their own country. Should a terrorist suspect, who is a threat to national security, be deported back to a country, where he is likely to be tortured because of the changed circumstances following the terrorist attacks since 11.11.2001? There has been a constant increase of terrorist attacks in the world since the 9/11 attacks:[52] the suicide bomber attacks on residential compounds in Riyadh, Saudi Arabia, on May 12, 2003;[53] the al-Qaida Madrid train bombings in 2004;[54] the London terror attacks on July 7, 2005;[55] two bombs were found on separate cargo planes, on route from Yemen to the US 2010;[56] and recently, the suicide bomb attack at Russian train station in Volgograd, in 2013.[57]
In 2010, the head of MI5, Jonathan Evans, stated that the UK continues to face an actual threat from Al Qaida-related terrorism.[58] Moreover, according to a government report, UK faces a threat of a nuclear attack by Al-Qaida terrorists because of the significant increase in the trafficking of radiological material.[59] Strikingly, it was argued that the threat of terrorism not only create fear and anxiety, it also ‘offers financial and growth opportunities to private enterprise, bureaucrats, and to institution-builders.’[60]
It was suggested that one way of addressing this terrorism threat is to review the international prohibition on the use of torture against terror suspects.[61] Moreover, in some states in which torture is not practiced, there is a growing popular, political and judicial desire to debate possible exceptions to the absolute ban against torture.[62] It was claimed that the aspect of terrorism will constantly change in the future, as it has in the past[63] . Tomorrow, terrorists may use mass weapons- nuclear, chemical, and biological- able of destroying entire cities and even more[64] . Terrorism can become more lethal and put in danger even more lives[65] . Therefore, it was claimed that if it is not possible to agree on cases in which torture was justified against smaller threats, this does not mean that it would not be possible to agree on cases in which torture will be justified against bigger threats of terrorism.[66] Giving a lecture on terrorism and human rights at the University of Hertfordshire, Lord Phillips questioned whether torture could be used to persuade a terrorist to reveal the location of the ticking bomb that would otherwise take uncountable lives: “The classic answer is that the law can never justify the use of torture, but in a situation such as that the executive might be forgiven for acting in a manner that was unlawful.”[67] Should torture of a person be justified if it prevents the killing of many people? Fyodor Dostoevsky captured the complexity of this dilemma in his famous novel The Brothers Karamazov when he had Ivan, who asked Alyosha the following question: “Imagine that you are creating a fabric of human destiny with the object of making men happy in the end… but that it was essential and inevitable to torture to death only one tiny creature …would you consent to be the architect on those conditions? Tell me the truth.”[68] Alan Dershowitz, a prominent law professor, stated that the use of nonlethal infliction of pain can be considered if ‘its use were to be limited by acceptable principles of morality.’[69] He also recommended a judicially issued warrant authorising nonlethal torture to deal with the ticking bomb cases[70]. However, Ben Saul argued that the attempt to justify terrorism by torture warrant is ‘misguided, logically indefensible, likely to be ineffective and morally unacceptable’[71]. Also, there are different ways in which ticking-time-bomb expectations can go wrong, for example, there could be a wrong person, whether an innocent individual or an individual without useful information in the relevant regard[72] . Furthermore, there is a probability that the suspected terrorist, once tortured, might not disclose any useful information[73] . Also, there is a risk that torture will brutalize the torturer or disturb the psychologies of those involved with torture[74] . Besides, no such “ticking-time-bomb cases” have ever been in the real world[75]. Since the right against torture has been an essential feature of the international community since at least 1948 with the formation of the Universal Declaration of Human Rights, some individuals may find it alarming that this discussion is even taking place[76]. Paul Hoffman argued that the desire to reject human rights rules in periods of crisis and fear is ‘short-sighted and self-defeating.’[77] Moreover, the violation of the human rights not only weakens our shared values, but also weakens the international collaboration and public support so essential to combating terrorism.[78] It is important for a law-abiding state to reaffirm the powerful symbolic message of the prohibition against torture; otherwise, its own principles will be betrayed.[79] Furthermore, there is no proof that a policy of permitting torture would in reality make the world any safer from terrorist attacks.[80] The state’s ignorance of the human rights norms makes it more possible that terrorist groups will recruit easier adherents among the persons, whose human rights have been infringed.[81] Therefore, the abuse of terrorism suspects’ rights might offer fuel to the terrorist cause and might be unnecessary or ineffective in improving security.[82]
Terrorism suspects are often viewed as ‘unworthy’ of human rights.[83] However, Lieve Gies argued that such persons may at times be considered worthy beneficiaries of human rights protection.[84] At the Madrid Summit in March 2005, UN Secretary-General Kofi Annan mentioned that “international human rights experts, including those of the UN system, are unanimous in finding that many of the measures that States are currently adopting to counter terrorism infringe on human rights and fundamental freedoms.”[85] Indeed, in the UK, the human rights of the terrorism suspects have been violated because of the domestic increase of anti- terrorism laws.[86] The only way to challenge these laws was the HRA. After the 9/11 attacks, it was introduced the Anti-terrorism, Crime and Security Act 2001 in the UK[87]. Section 23 (part 4) of this Act empowered the Home Secretary to detain international terrorism suspects without charge or trial. Later, the House of Lords held, under s. 4 of the Human Rights Act 1998, that s.23 is not compatible with the Art.5and Art.14 of the European Convention on Human Rights as this section was disproportionate and has allowed detention of foreign terrorism suspects ‘in a way that discriminates on the ground of nationality or immigration status.’[88] As a result, legislators responded promptly to the ruling of the HL by repealing the Anti-terrorism, Crime and Security Act 2001 and replacing it with the Prevention of Terrorism Act 2005.[89] The new Act permitted the international and UK terrorism suspects to stay in their own home by imposing “control order” on them.[90] However, control orders were found to be contrary to the Article 5(1) ECHR, right to liberty and security.[91] In Secretary of State for the Home Department v JJ and others,[92] the House of Lords held that the non-derogation control orders imposed on six Iraqi and Iranian nationals suspected of taking part in terrorism-related activities, which, among other things, imposed an 18 hour curfew and prohibited social contact with unauthorised persons inside or outside the home, amounted to a breach of the applicants’ Article 5 of the ECHR.
Also, there have been constant warnings from the human rights advocates that fundamental human rights are being challenged in the so-alleged “War on Terror”[93]. Nowadays, the fact that an individual is suspected of terrorism may in reality be a motive to give protection since terror suspects frequently are mostly at risk of being tortured.[94] To be able to deport a suspected terrorist, who is a threat to national security, without compromising their duties under international law, states are more and more willing to accept a “diplomatic assurance” from other state that terror suspect would not be tortured on his return.[95] While the human rights supporters view such assurances as “empty promises”, others view them as operative, permitting states to keep their right to remove foreigners without breaching international law.[96] To those countries where the UK was not allowed to deport terrorist suspects because of the risk that they would be tortured there, the government, after the 2005 London terror attacks on July 7, decided that they would seek diplomatic assurances from at least 10 countries in the Middle East and North Africa that terror suspects would not be tortured.[97] In three joined cases, RB (Algeria) v Secretary of State for the Home Department, U (Algeria) v Same, Othman v Same,[98] the House Lords upheld earlier rulings of the Special Immigration Appeals Commission that the government is allowed to deport the terrorism suspects, two Algerians and a Jordanian national, back to their countries in reliance on diplomatic assurances against torture from those countries. However, Human Rights Watch has questioned the reliability of diplomatic assurances.[99] Julia Hall argued that given how the House of Lords have defended the human rights in few previous counterterrorism cases, “it is extremely disappointing that they have now agreed to the discredited practice of deporting suspects based on unreliable government promises.”[100] Later, in 2012, the European Court of Human Rights overruled the House of Lords decision and blocked the deportation of the suspected terrorist, Othman (Abu Qatada), to face trial in Jordan because of the risk of trial on torture-tainted evidence, which would be a violation of Article 6 (1) of the ECHR.[101] It is important to notice that the ECtHR agreed with the House of Lords that diplomatic assurances will defend Abu Qatada from torture and there would be no violation of Article 3 of the ECHR[102] . The decision of the ECtHR, to block the deportation of Abu Qatada, has received criticism from David Cameron, who stated that European Court of Human Rights’ rulings ‘are in danger of having a corrosive effect on people’s support for civil liberties’.[103] However, Sir Nicholas Bratza, the president of the European Court of Human Rights at that time, stated that ‘it is disappointing to hear senior British politicians lending their voices to criticisms more frequently heard in the popular press, often based on a misunderstanding of the court’s role and history, and of the legal issues at stake.’[104] In July 2013, Abu Qatada was nevertheless deported after the UK and Jordan signed a treaty agreeing that torture-tainted evidence would not be used against the suspected terrorist.[105]
Theresa May stated that because of a “crazy interpretation” of human rights law and the European Court of Human Rights in Strasbourg, the radical Islamist cleric, Abu Qatada, was allowed to remain so long in the UK.[106] She also added that the possibility of withdrawing from the European Convention on Human Rights needs to remain on the table to stop any repeat of Abu Qatada affair.[107] In response to this objection, Eleanor Blatchley said that the ECtHR has contributed significantly to ‘ending commonplace torture in custody, in moving towards equal treatment for women, and for lesbian and gay people, and in upholding the freedom of the media among other things.’[108] Moreover, the human rights impact does not stop with terrorism cases because when no other remedy will apply, everybody in the UK, from poor person to prince, can actually profit from the Human Rights Act.[109] For example, in HRH Prince of Wales v Associated Newspapers Ltd case,[110] The Prince of Wales has won the legal battle against Associated Newspapers for invasion of privacy under the Human Rights Act 1998 Sch.1 Part I Art.8 and copyright infringement. Likewise, the Human Rights Act 1998 has helped many ordinary people in the UK; it helped to ‘secure accommodation for the survivors of domestic violence, to tackle discrimination against homeless people, to prevent degrading practices in psychiatric hospitals and to stop the separation of elderly couples to place them in different residential care homes.’[111] Also, there is a significant reduction in the number of violations involving the UK Government since the Human Rights Act 1998 came into effect[112]. Therefore, we should all celebrate and be thankful for the Human Rights Act[113].
In recent years, there has been much discussion concerning supplementing or replacing the HRA with a British Bill of Rights.[114] For example, in 2009, Labour government, under Gordon Brown, released a Green Paper suggesting for a new Bill of Rights and Responsibilities.[115] That Bill was intended to be a supplement of the European Convention on Human Rights, and not a substitute.[116] In May 2010, the new Conservative-Liberal Democrat Government announced as part of its Coalition programme that: ‘We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights’.[117] However, Sir Geoffrey Bindman QC stated that whatever the Commission recommends, the abrogation of the Human Rights Act 1998 ‘would betray historic British values and make no practical sense.’[118] The commission was established by the Government on the 18th of March 2011.[119] They submitted its final report to the Government on the 18th of December, 2012[120]. The Commission maintained that the strongest argument against a UK Bill of Rights, which was also the one advanced by the largest number of respondents, was that ‘the UK already has a Bill of Rights in the shape of the HRA 1998.’[121] The Commission stated that despite the fact that some members of the commission have reservations about the effect the HRA 1998 has had on public life and the cost of government in some serious cases, the Act was and is, without any doubt, ‘a carefully drafted piece of legislation’[122]. Two members of the Commission, Helena Kennedy and Philippe Sands did not share the view of the majority that there should be a Bill of Rights[123]. However, the majority of the members of the Commission did not believe that the creation of a new Bill of Rights was unnecessary as “there is a lack of public understanding and ‘ownership’ of the Human Rights Act.”[124] However, in the twenty-ninth report of session 2007-08, the Joint Committee on Human Rights alleged that the Government’s reasons regarding the modification of public misunderstandings concerning the existing regime of human rights protection, under the HRA, had not considered being a good reason for drawing up a new Bill of Rights[125]. They argued, in this and previous reports, that Government should explode public misunderstandings about human rights and not treat them as if they were real[126]. The majority of the 2011, UK Bill of Rights Commission gave support to the creation of a new Bill of Rights; however, they were not able to agree on its content.[127] Also, the Commission found out that most of the people in Northern Ireland, Scotland and Wales, which spoke to the Commission, have very little support for a UK Bill of Rights.[128] The Commission proposed that the Government should delay the work on a UK Bill of Rights until they know for sure whether Scotland wants to be independent or not[129]. The Commission concluded that there is a need for additional public consultation.[130]
The idea that a new Bill of rights could offer ‘a panacea for the HRA’s ills’ had been entrenched in the Tories’ psyche for several years[131]. In 2006, David Cameron, stated that the HRA 1998 should be repealed and replaced with a new Bill of Rights in order to help the state to combat terrorism[132]. In 2013, David Cameron, already as prime minister, stated that, if a Conservative government will be in power after the 2015 general election, they would do ‘whatever that takes’ to deport more easily persons who pose a threat to our country.[133] He claimed that this could involve the formation of a new Bill of rights, which would permit the UK to stay within the European Convention on Human Rights while being sure that European Court of human rights’ judges respect UK’s decisions.[134] The Tories’ proposal to replace the HRA with a British Bill of Rights because it prohibits the deportation of non-nationals to countries where there is a real risk they would be tortured, has been subject to a number of criticisms from academic, political and media actors.[135] Indeed, Ken Clarke MP said that Mr Cameron’s proposal was ‘xenophobic and legal nonsense’[136]. Also, Francesca Klug stated that Mr Cameron needs some advice about the fact that for as long as United Kingdom is a member of the Council of Europe or European Union, a new domestic Bill of Rights ‘will provide no get out clause from the absolute prohibition on torture.’[137] Moreover, UK would have to leave also the United Nations because the Convention Against Torture expressly prohibits such conduct.[138] David Cameron also stated that Tories are ready to withdraw from the European Convention on Human Rights if they believe it is necessary to keep UK protected.[139] However, Jesse Norman and Peter Oborne stated that departure from the ECHR would send a terrible message to the world that personal rights, individual freedoms and certainly the rule of law can be abrogated when they are troublesome.[140] As the 2015 general election approaches[141], it is significant for Tories to drop its hostility to the HRA and show Britain that ‘it is our own Bill of Rights and Churchill’s legacy.’[142]
In conclusion, it could be said that the Human Rights Act 1998 is not a charter for terrorists. The poor reputation of the HRA is coming from the fact that it is often mistaken for a ‘European law’ enforced on the UK by the European Union. In fact, the HRA is a perfectly ‘Conservative document’ as the ECHR was inspired by Sir Churchill, negotiated and drafted largely by a Conservative politician. The myths about the HRA are also coming from the fact that there was no strong narrative about the HRA, therefore, allowing newspapers and broadcasting media to use their clandestine imagination. It is not true that the HRA weakens the ability of the British security forces to fight terrorism. The HRA does not impede those, who are a threat to national security, from being deported. What the HRA does do is to stop the Government from deporting terrorist suspects back to countries, where they are likely to be tortured. Article 3 of the ECHR and article 3(1) of the United Nations Convention against Torture support the absolute nature of freedom from torture. Because the threat of terrorism continues to grow in the world since the 9/11, it has been suggested that one way of addressing this terrorism threat is to review the international prohibition on the use of torture against terror suspects. However, human rights infringements in the name of combating terrorism may undermine the ability to protect citizens against the threats of terrorism, making them less rather than more protected in both the long and short terms. Moreover, terrorism suspects are as worthy beneficiaries of human rights protection like any other. Their human right have been violated because of the domestic increase of anti- terrorism laws and diplomatic assurances against torture. The fact that an individual is suspected of terrorism may in reality be a motive to give protection since terror suspects frequently are mostly at risk of being tortured. The Human Rights Act is hardly just a tool for terrorists because when no other remedy will apply, everybody in the UK, from poor person to prince, can actually profit from the Human Rights Act. Therefore, we should all celebrate and give thanks for the Human Rights Act. Further, a new Bill of Rights will not help the state to combat terrorism because as long as United Kingdom is member of the European Union and United Nations, a new domestic Bill of Rights will not allow the deportation of non-nationals to countries where there is a real risk they would be tortured. The fact that the 2011, UK Bill of Rights Commission was not able to achieve any results regarding a Bill of Rights, that would incorporate and build on all our obligations under the ECHR, shows us that very little could be done with our quite elegant and already existing HRA 1998. As the 2015 general election approaches, it is important for Conservatives to drop its hostility to the HRA and show to UK and to the rest of the world that it is our own Bill of Rights and the legacy of Churchill.
Primary Sources
Cases
A and Others v Secretary of State for the Home Department, X and Another v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 A.C. 68
Aksoy v Turkey (1997) 23 E.H.R.R. 553
Chahal v United Kingdom (1997) 23 E.H.R.R. 413
HRH Prince of Wales v Associated Newspapers Ltd [2007] 3 W.L.R. 222
Mohammed Othman (Abu Qatada) v Secretary of State for the Home Department 2012 WL 4888783
RB (Algeria) v Secretary of State for the Home Department, U (Algeria) v Same, Othman v Same [2008] EWCA Civ 290, [2010] 2 A.C. 110
Secretary of State for the Home Department v JJ and others [2008] 1 A.C. 385
UK Primary Legislation
Anti-terrorism, Crime and Security Act 2001, Section 23 (part 4)
Human Rights Act 1998, Section 4
Human Rights Act 1998, Article 8(2)
Prevention of Terrorism Act 2005, Section 1
European Treaties
European Convention on Human Rights, Article 3
European Convention on Human Rights, Article 5
European Convention on Human Rights, Article 6
European Convention on Human Rights, Article 6 (1)
European Convention on Human Rights, Article 14
European Convention on Human Rights, Article 15(2)
Treaty of Rome (1957)
Treaty on European Union, Article 2
United Nations Documents
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, U.N. G.A. RES 39/46, Article 3(1)
International Convention on Civil and Political Rights December 16, 1996, G. A. Res. 2200A (XXI), Article 7
Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.183/9, Article 7(1)(f)
Rome Statute of the International Criminal Court, Article 7(2)(e)
Rome Statute of the International Criminal Court, Article 8(2)(a)(ii)
Statute of the International Criminal Tribunal for Rwanda, November 8, 1994 (in UN Security Council res. 955), Article 3(f)
Statute of the International Criminal Tribunal for the former Yugoslavia, May 25, 1993 (in UN Security Council res. 827), Article 5(f)
Secondary Sources
Books
Dershowitz M A, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (Yale University Press, New Haven and London 2002)
Sottiaux S, Terrorism and the Limitation of Rights: The ECHR and the US Constitution (Hart Publishing, Portland 2008)
Wadham J and Mountfield H, Human Rights Act 1998 (2nd edn Oxford University Press, New York 2000)
Journals
Allhoff F, ‘Empirical Objections to Torture: A Critical Reply’ (2014) Terrorism and Political Violence 1
Ambos K, ‘May a State Torture Suspects to Save the Life of Innocents?’ (2008) 6 (2) Journal of International Criminal Justice 261
Amos M,’ Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer?’ (2009) 72(6) The Modern Law Review 883
Biggar N, ‘Individual Rights versus Common Security? Christian Moral Reasoning about Torture’ (2014) 27(1) Studies in Christian Ethics 3
Bindman G QC, ‘Defending our Rights ‘ (2012) 162 NLJ 1272
Boateng P & Straw J, “Bringing rights home: Labour’s plans to incorporate the European Convention on Human Rights into Uk law” (1997) E.H.R.L.R. 71
Elliott M, “The ‘war on terror’ and the United Kingdom’s constitution”, (2007) European Journal of Legal Studies 1, 5 < http://www.ejls.eu/1/11UK.pdf>
Feldman D, ‘Extending the Role of the Courts: The Human Rights Act 1998’ (2011) 30(1) PHYT 65
Foot R, ‘The United Nations, Counter Terrorism, and Human Rights: Institutional Adaptation’ (2007) 29(2) Human Rights Quarterly 489
Gies L, ‘A Villains’ Charter? The Press and the Human Rights Act’ (2011) 7 (2) Crime Media Culture 167
Hoffman P, ‘Human Rights and Terrorism’ (2004) 26(4) HRQ 932
Hudson B, ‘Justice in a Time of Terror’ (2009) 49 (5) British Journal of Criminology 702
Jones M, ‘Lies, Damned Lies and Diplomatic Assurances: The Misuse of Diplomatic Assurances in Removal Proceedings’ (2006) 8 Eur. J. Migration & L. 9
Klug F, ‘A Bill of Rights: Do We Need One or Do We Already Have One?’ [2007] Public Law 701
Munce P, ‘Profoundly Un-Conservative? David Cameron and the UK Bill of Rights Debate’ (2012) 83(1) The Political Quarterly 60
Saul B, ‘Torturing terrorists after September 11’ (2004) 27 International Journal of Law and Psychiatry 645
Skoglund L, ‘Diplomatic Assurances Against Torture – An Effective Strategy?’ (2008) 77 Nordic Journal of International Law 319
Thomas P A, ‘9/11: USA and UK’ (2002) 26(4) Fordham International Law Journal 1193
Turner I, ‘Freedom From Torture in the “War on Terror”: Is it Absolute?’ (2011) 23(3) Terrorism and Political Violence 419
Wright A, ‘An Introduction To Human Rights Act And Policing’ (2000) 73 Police Journal 193
Webber F, ‘UK: the way to pariah status in Europe’ (2013) 55 (2) Race & Class 99
Wouters K, ‘Editorial: How Absolute is the Prohibition on Torture?’ (2006) 8 European Journal of Migration and Law 1
Zedner L, ‘Securing Liberty in the Face of Terror: Reflections from Criminal Justice’ (2005) 32(4) Journal of Law and Society 507
Command papers
Lord Chancellor and Secretary of State for Justice by Command of Her Majesty, ‘Rights and Responsibilities: developing our constitutional framework’ (Cm 7577, 2009)
Secretary of State for Constitutional Affairs and Lord Chancellor by Command of Her Majesty, ‘The Human Rights Act : the DCA and Home Office Reviews; Government Response to the Joint Committee on Human Rights’ Thirty –second Report of Session 2005-06’ (Cm 7011, 2007)
Government publications
Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us, Vol 1 (2012) <http://www.justice.gov.uk/downloads/about/cbr/uk-bill-rights-vol-1.pdf>
Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act (July 2006) http://webarchive.nationalarchives.gov.uk/+/http:/www.dca.gov.uk/peoples-rights/human-rights/pdf/full_review.pdf
HM Government, The Coalition programme for government (May 2010)
Jonathan Evans, The Threat to National Security (16 September 2010) at [20] <https://www.mi5.gov.uk/home/about-us/who-we-are/staff-and-management/director-general/speeches-by-the-director-general/the-threat-to-national-security.html>
Pamphlet
Norman J and Oborne P, Churchill’s Legacy: The Conservative case for the Human Rights Act (Liberty (National Council for Civil Liberties), London 2009) [Pamphlet] <http://www.liberty-human-rights.org.uk/policy/reports/churchill-s-legacy-the-conservative-case-for-the-hra-october-2009.pdf>
Parliamentary Publications
Labour Party, A New Agenda for Democracy: Labour’s Proposals for Constitutional Reform (1993)
Parliamentary Archives, General Election Timetable 2015 <http://www.parliament.uk/about/how/elections-and-voting/general/general-election-timetable-2015/>
Parliamentary Reports
Joint Committee on Human Rights, A Bill of Rights for the UK (2007-08, HL 165-I, HC 150- I)
Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006 (Twelfth Report of Session 2005-2006, HL 122, HC 915)
Joint Committee on Human Rights, The Human Rights Act: The DCA and Home Office Reviews (2005-06, HL 278, HC 1716)
Joint Committee on Human Rights, The Work of the Committee in 2007 and the State of Human Rights in the UK (2007-08, HL 38, HC 270)
Newspaper articles
__‘Balancing freedom and security –a modern British Bill of Rights’ (The Guardian, 26 June 2006) http://www.guardian.co.uk/politics/2006/jun/26/conservatives.constitution
Bowcott O and Pallister D, ‘The message is: you’re not safe here’ The Guardian (11 May 2003) < http://www.theguardian.com/world/2003/may/14/alqaida.saudiarabia1>
Bratza N, ‘Nicolas Bratza: Britain should be defending European justice, not attacking it’ The Independent (24 January 2012) http://www.independent.co.uk/voices/commentators/nicolas-bratza-britain-should-be-defending-european-justice-not-attacking-it-6293689.html
Clarke S, ‘Major terrorist attacks since 9/11’ The Guardian (7 July 2005) <http://www.theguardian.com/world/2005/jul/07/terrorism.uk1>
Gardham D, ‘Britain facing a new wave of terrorist attacks, MI5 warns’ The Telegraph (16 September 2010) <http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/8008033/Britain-facing-a-new-wave-of-terrorist-attacks-MI5-warns.html>
Gardham D, ‘Nuclear terror risk to Britain from al-Qaeda’ The Telegraph (22 March 2010) <http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/7500719/Nuclear-terror-risk-to-Britain-from-al-Qaeda.html>
Mitchell M, ‘Why we should all give thanks for the Human Rights Act’ The Guardian http://www.theguardian.com/society/joepublic/2011/dec/09/human-rights-act-day-older-people
Oliphant O, ‘Suicide bombing at Russian train station’ The Telegraph (Moscow, 29 December 2013) <http://www.telegraph.co.uk/news/worldnews/europe/russia/10541512/Suicide-bombing-at-Russian-train-station-sparks-Sochi-fears.html>
Oliver M, ‘Details of the London blasts’ The Guardian (7 July 2005) <http://www.theguardian.com/uk/2005/jul/07/terrorism.july71>
Rozenberg J, ‘Torture may be forgivable, says judge’ The Telegraph (20 October 2006) <http://www.telegraph.co.uk/news/uknews/1531914/Torture-may-be-forgivable-says-judge.html>
Russell B, “Ken Clarke brands Cameron plan for Bill of Rights as ‘xenophobic’” The Independent (28 June 2006) < http://www.independent.co.uk/news/uk/politics/ken-clarke-brands-cameron-plan-for-bill-of-rights-as-xenophobic-405797.html>
Press association, ‘Cameron: I’d withdraw from human rights convention ‘to keep UK safe’ The Guardian (29 September 2013) http://www.theguardian.com/politics/2013/sep/29/david-cameron-human-rights-convention
__, ‘Spain remembers victims of Madrid blasts’ The Guardian (11 March 2005) <http://www.theguardian.com/world/2005/mar/11/spain.alqaida1>
Travis A, ‘Theresa May criticises human rights convention after Abu Qatada affair’ The Guardian (8 July 2013) <http://www.theguardian.com/world/2013/jul/08/theresa-may-human-rights-abu-qatada>
Watt N, ‘Human rights court risks corroding support for civil liberties, warns PM’ The Guardian (25 January 2012) http://www.theguardian.com/law/2012/jan/25/human-rights-court-corroding-support
Websites
BBC News UK, ‘Abu Qatada deported from UK to stand trial in Jordan’ (7 July 2013) http://www.bbc.co.uk/news/uk-23213740
BBC News, ‘US Officials ban cargo aircraft from Somalia and Yemen’ (8 November 2010) <http://www.bbc.co.uk/news/world-us-canada-11713958>
Blatchley E, ‘Proceed with Caution: British Ministers’ Relentless Attacks on Human Rights’ (Human Rights Watch, 17August 2013) < http://www.hrw.org/news/2013/08/17/proceed-caution-british-ministers-relentless-attacks-human-rights>
Cash B and Huppert J, ‘Should we repeal the Human Rights Act?’ (Total politics, 13 June 2011) <http://staging.totalpolitics.widearea.co.uk/opinion/160582/should-we-repeal-the-human-rights-act.thtml>
Constitutional Law Group, ‘Helen Fenwick: The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?’ (21 March 2013) http://ukconstitutionallaw.org/2013/03/21/helen-fenwick-the-report-of-the-bill-of-rights-commission-disappointing-conservative-expectations-or-fulfilling-them/
__, ‘UK: Law Lords Judgment Undermines Torture Ban’ (Human Rights Watch, 18 February 2009) <http://www.hrw.org/news/2009/02/18/uk-law-lords-judgment-undermines-torture-ban>
[1] Lieve Gies, ‘A Villains’ Charter? The Press and the Human Rights Act’ (2011) 7 (2) Crime Media Culture 167, 167.
[2] Ibid 168.
[3] Ibid 169.
[4] Bill Cash and Julian Huppert, ‘Should we repeal the Human Rights Act?’ (Total politics, 13 June 2011) http://staging.totalpolitics.widearea.co.uk/opinion/160582/should-we-repeal-the-human-rights-act.thtml accessed: 28 October 2013.
[5] Lieve Gies, ‘A Villains’ Charter? The Press and the Human Rights Act’ (2011) 7 (2) Crime Media Culture 167, 169.
[6] Ibid.
[7] Jesse Norman and Peter Oborne, Churchill’s Legacy: The Conservative case for the Human Rights Act (Liberty (National Council for Civil Liberties), London 2009) [Pamphlet] at 6 < http://www.liberty-human-rights.org.uk/policy/reports/churchill-s-legacy-the-conservative-case-for-the-hra-october-2009.pdf> accessed 31 October 2013. See also, Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us, Vol 1 (2012) at p.10, para [9] < http://www.justice.gov.uk/downloads/about/cbr/uk-bill-rights-vol-1.pdf> accessed: 09 January 2014.
[8] Alan Wright, ‘An Introduction To Human Rights Act And Policing’ (2000) 73 Police Journal 193, 193-194.
[9] Now, Article 6 of the European Convention on Human Rights.
[10] Now, Article 5 of the ECHR.
[11] Now, Article 3 of the ECHR.
[12] Jesse Norman and Peter Oborne, Churchill’s Legacy: The Conservative case for the Human Rights Act (Liberty (National Council for Civil Liberties), London 2009) [Pamphlet] at 7,8 < http://www.liberty-human-rights.org.uk/policy/reports/churchill-s-legacy-the-conservative-case-for-the-hra-october-2009.pdf> accessed 31 October 2013.
[13] Francesca Klug, ‘A Bill of Rights: Do We Need One or Do We Already Have One?’ [2007] Public Law 701, 713.
[14] Ibid.
[15] Ibid 714.
[16] Ibid.
[17] Francesca Klug, ‘A Bill of Rights: Do We Need One or Do We Already Have One?’ [2007] Public Law 701, 714.
[18] Bill Cash and Julian Huppert, ‘Should we repeal the Human Rights Act?’ (Total Politics, 13 June 2011).
http://staging.totalpolitics.widearea.co.uk/opinion/160582/should-we-repeal-the-human-rights-act.thtml accessed: 28 October 2013.
[19] Merris Amos,’ Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer?’ (2009) 72(6) The Modern Law Review 883, 888.
[20] Jesse Norman and Peter Oborne, Churchill’s Legacy: The Conservative case for the Human Rights Act (Liberty (National Council for Civil Liberties), London 2009) [Pamphlet] at 36 < http://www.liberty-human-rights.org.uk/policy/reports/churchill-s-legacy-the-conservative-case-for-the-hra-october-2009.pdf > accessed 21 March 2014.
[21] Stefan Sottiaux, Terrorism and the Limitation of Rights: The ECHR and the US Constitution (Hart Publishing, Portland 2008) 118.
[22] Ibid 119.
[23] Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (Yale University Press, New Haven and London 2002) 107.
[24] Stefan Sottiaux (n 21) 119.
[25] Geoffrey Bindman QC, ‘Defending our Rights ‘ (2012) 162 NLJ 1272, 1273.
[26] John Wadham and Helen Mountfield, Human Rights Act 1998 (2nd edn Oxford University Press, New York 2000) 210-211.
[27] Paul Boateng & Jack Straw, “Bringing rights home: Labour’s plans to incorporate the European Convention on Human Rights into Uk law” (1997) E.H.R.L.R. 71, 71.
[28] Ibid 72.
[29] David Feldman, ‘Extending the Role of the Courts: The Human Rights Act 1998’ (2011) 30(1) PHYT 65, 66.
[30] Ibid.
[31] Labour Party, A New Agenda for Democracy: Labour’s Proposals for Constitutional Reform (1993).
[32] Jesse Norman and Peter Oborne, Churchill’s Legacy: The Conservative case for the Human Rights Act (Liberty (National Council for Civil Liberties), London 2009) [Pamphlet] at 10 < http://www.liberty-human-rights.org.uk/policy/reports/churchill-s-legacy-the-conservative-case-for-the-hra-october-2009.pdf> accessed 31 October 2013.
[33] Ibid.
[34] Bill Cash and Julian Huppert, ‘Should we repeal the Human Rights Act?’ (Total Politics, 13 June 2011)
<http://staging.totalpolitics.widearea.co.uk/opinion/160582/should-we-repeal-the-human-rights-act.thtml> accessed: 28 October 2013.
[35] Jesse Norman and Peter Oborne, Churchill’s Legacy: The Conservative case for the Human Rights Act (Liberty (National Council for Civil Liberties), London 2009) [Pamphlet] at 11 < http://www.liberty-human-rights.org.uk/policy/reports/churchill-s-legacy-the-conservative-case-for-the-hra-october-2009.pdf> accessed 31 October 2013.
[36] However, to others, the HRA has done little to prevent “the erosion of civil liberties, which has occurred in the name of the ‘war on terror’”, Lieve Gies, ‘A Villains’ Charter? The Press and the Human Rights Act’ (2011) 7 (2) Crime Media Culture 167, 169.
[37] Jesse Norman and Peter Oborne, Churchill’s Legacy: The Conservative case for the Human Rights Act (Liberty (National Council for Civil Liberties), London 2009) [Pamphlet] at 11 < http://www.liberty-human-rights.org.uk/policy/reports/churchill-s-legacy-the-conservative-case-for-the-hra-october-2009.pdf > accessed 31 October 2013.
[38] Ibid.
[39] Ibid.
[40] Ian Turner, ‘Freedom From Torture in the “War on Terror”: Is it Absolute?’ (2011) 23(3) Terrorism and Political Violence 419, 424 .
[41] Article 15(2) of the European Convention on Human Rights.
[42] (1997) 23 E.H.R.R. 553, 585, [62].
[43] Barbara Hudson, ‘Justice in a Time of Terror’ (2009) 49 (5) British Journal of Criminology 702, 708.
[44] Nigel Biggar, ‘Individual Rights versus Common Security? Christian Moral Reasoning about Torture’ (2014) 27(1) Studies in Christian Ethics 3, 12.
[45] Ibid.
[46] Statute of the International Criminal Tribunal for the former Yugoslavia, May 25, 1993 (in UN Security Council res. 827), Article 5(f); Statute of the International Criminal Tribunal for Rwanda, November 8, 1994 (in UN Security Council res. 955), Article 3(f); Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.183/9 , Articles 7(1)(f) and 7(2)(e).
[47] Rome Statute (n 46) Article 8(2)(a)(ii).
[48] The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, U.N. G.A. RES 39/46.
[49] See also Article 7 of the International Convention on Civil and Political Rights December 16, 1996, G. A. Res. 2200A (XXI) : ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’
[50] Ben Saul, ‘Torturing terrorists after September 11’ (2004) 27 International Journal of Law and Psychiatry 645, 646.
[51](1997) 23 E.H.R.R. 413, 457, ‘the prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases’.
[52] Sean Clarke, ‘Major terrorist attacks since 9/11’ The Guardian (7 July 2005) <http://www.theguardian.com/world/2005/jul/07/terrorism.uk1> accessed: 28 February 2014.
[53] Owen Bowcott and David Pallister, ‘The message is: you’re not safe here’ The Guardian (11 May 2003) <http://www.theguardian.com/world/2003/may/14/alqaida.saudiarabia1> accessed: 28 February 2014.
[54] __, ‘Spain remembers victims of Madrid blasts’ The Guardian (11 March 2005) <http://www.theguardian.com/world/2005/mar/11/spain.alqaida1> accessed: 28 February 2014.
[55] Mark Oliver, ‘Details of the London blasts’ The Guardian (7 July 2005) <http://www.theguardian.com/uk/2005/jul/07/terrorism.july71> accessed: 28 February 14.
[56] BBC News, ‘US Officials ban cargo aircraft from Somalia and Yemen’ (8 November 2010) <http://www.bbc.co.uk/news/world-us-canada-11713958> accessed: 28 February 2014.
[57] Roland Oliphant, ‘Suicide bombing at Russian train station’ The Telegraph (Moscow, 29 December 2013) <http://www.telegraph.co.uk/news/worldnews/europe/russia/10541512/Suicide-bombing-at-Russian-train-station-sparks-Sochi-fears.html> accessed: 28 February 2014.
[58] ‘Counter-terrorist capabilities have improved in recent years but there remains a serious risk of a lethal attack taking place’, Jonathan Evans, ‘The Threat to National Security’ (16 September 2010) at [20] <https://www.mi5.gov.uk/home/about-us/who-we-are/staff-and-management/director-general/speeches-by-the-director-general/the-threat-to-national-security.html> accessed: 28 February 2014. See also Duncan Gardham, ‘Britain facing a new wave of terrorist attacks, MI5 warns’ The Telegraph (16 September 2010) <http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/8008033/Britain-facing-a-new-wave-of-terrorist-attacks-MI5-warns.html> accessed: 28 February 2014.
[59] “There was a ‘significant increase in the illicit trafficking of radiological materials, the availability of chemical, biological radiological and nuclear (CBRN) related technologies over the internet and the increased use of CBRN material for legitimate purposes’, which could be acquired by terrorist organisations”, Duncan Gardham, ‘Nuclear terror risk to Britain from al-Qaeda’ The Telegraph (22 March 2010) <http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/7500719/Nuclear-terror-risk-to-Britain-from-al-Qaeda.html> accessed: 28 February 2014.
[60] Philip A. Thomas, ‘9/11: USA and UK’ (2002) 26(4) Fordham International Law Journal 1193, 1205-1206; Lucia Zedner, ‘Securing Liberty in the Face of Terror: Reflections from Criminal Justice’ (2005) 32(4) Journal of Law and Society 507, 518.
[61] Ian Turner, ‘Freedom From Torture in the “War on Terror”: Is it Absolute?’ (2011) 23(3) Terrorism and Political Violence 419, 420.
[62] Martin Jones, ‘Lies, Damned Lies and Diplomatic Assurances: The Misuse of Diplomatic Assurances in Removal Proceedings’ (2006) 8 Eur. J. Migration & L. 9, 9.
[63] Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (Yale University Press, New Haven and London 2002) 9.
[64] Ibid 10.
[65] Fritz Allhoff, ‘Empirical Objections to Torture: A Critical Reply’ (2014) Terrorism and Political Violence 1, 18.
[66] Ibid.
[67] Joshua Rozenberg, ‘Torture may be forgivable, says judge’ The Telegraph (20 October 2006) <http://www.telegraph.co.uk/news/uknews/1531914/Torture-may-be-forgivable-says-judge.html> accessed: 03 March 2014.
[68] Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (Yale University Press, New Haven and London 2002) 147.
[69] Ibid.
[70] Ibid 158-159.
[71] Ben Saul, ‘Torturing terrorists after September 11’ (2004) 27 International Journal of Law and Psychiatry 645, 645.
[72] Fritz Allhoff, ‘Empirical Objections to Torture: A Critical Reply’ (2014) Terrorism and Political Violence 1, 1. See also Kees Wouters, ‘Editorial: How Absolute is the Prohibition on Torture?’ (2006) 8 European Journal of Migration and Law 1, 1-2.
[73] Fritz Allhoff (n 72) 1-2.
[74] Ibid 11-12.
[75] Ibid 18.
[76]Ian Turner, ‘Freedom From Torture in the “War on Terror”: Is it Absolute?’ (2011) 23(3) Terrorism and Political Violence 419, 420, 421. See also Lucia Zedner, ‘Securing Liberty in the Face of Terror: Reflections from Criminal Justice’ (2005) 32(4) Journal of Law and Society 507, 521, some individuals regard the right against the use of ill-treatment as so essential that even to debate it is taboo.
[77] Paul Hoffman, ‘Human Rights and Terrorism’ (2004) 26(4) HRQ 932, 933. ‘History shows that when societies trade human rights for security, most often they get neither’, Ibid 934.
[78] Ibid 935. ‘No nation, no matter how powerful, can solve the problem of terrorism on its own. All governments need the voluntary cooperation of every segment of its society to be effective in preventing acts of terrorism’, Ibid.
[79] Kai Ambos, ‘May a State Torture Suspects to Save the Life of Innocents?’ (2008) 6 (2) Journal of International Criminal Justice 261, 269.
[80] Paul Hoffman, ‘Human Rights and Terrorism’ (2004) 26(4) HRQ 932, 944.
[81] Ibid 935
[82] Lucia Zedner, ‘Securing Liberty in the Face of Terror: Reflections from Criminal Justice’ (2005) 32(4) Journal of Law and Society 507, 510.
[83] Lieve Gies, ‘A Villains’ Charter? The Press and the Human Rights Act’ (2011) 7 (2) Crime Media Culture 167, 178.
[84] Ibid.
[85] Rosemary Foot, ‘The United Nations, Counter Terrorism, and Human Rights: Institutional Adaptation’ (2007) 29(2) Human Rights Quarterly 489, 490.
[86] Jesse Norman and Peter Oborne, Churchill’s Legacy: The Conservative case for the Human Rights Act (Liberty (National Council for Civil Liberties), London 2009) [Pamphlet] at 11 < http://www.liberty-human-rights.org.uk/policy/reports/churchill-s-legacy-the-conservative-case-for-the-hra-october-2009.pdf> accessed 31 October 2013.
[87] Mark Elliott, “The ‘war on terror’ and the United Kingdom’s constitution”, (2007) European Journal of Legal Studies 1, 5 < http://www.ejls.eu/1/11UK.pdf> accessed: 10 January 2014.
[88] A and Others v Secretary of State for the Home Department, X and Another v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 A.C. 68, p. 127, para [73].
[89] Mark Elliott, “The ‘war on terror’ and the United Kingdom’s constitution”, (2007) European Journal of Legal Studies 1, 15 < http://www.ejls.eu/1/11UK.pdf> accessed: 10 January 2014
[90] Prevention of Terrorism Act 2005, s. 1
[91] Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006 (Twelfth Report of Session 2005-2006, HL 122, HC 915) para [38].
[92] [2008] 1 A.C. 385, 414, 415.
[93] Lena Skoglund, ‘Diplomatic Assurances Against Torture – An Effective Strategy?’ (2008) 77 Nordic Journal of International Law 319, 328.
[94] Ibid, 331.
[95] Ibid 320.
[96] Ibid 321.
[97] Ian Turner, ‘Freedom From Torture in the “War on Terror”: Is it Absolute?’ (2011) 23(3) Terrorism and Political Violence 419, 424- 425.
[98] [2008] EWCA Civ 290, [2010] 2 A.C. 110, 259, 260, at para [241]- [242].
[99]__, ‘UK: Law Lords Judgment Undermines Torture Ban’ (Human Rights Watch , 18 February 2009) <http://www.hrw.org/news/2009/02/18/uk-law-lords-judgment-undermines-torture-ban> accessed: 01 March 2014.
[100] Ibid.
[101] Mohammed Othman (Abu Qatada) v Secretary of State for the Home Department 2012 WL 4888783, at [78].
[102] Ibid [87], ‘We remain convinced that the government of Jordan can and will fulfil its assurances about the treatment of the appellant on return.’
[103] Nicholas Watt, ‘Human rights court risks corroding support for civil liberties, warns PM’ The Guardian (25 January 2012) http://www.theguardian.com/law/2012/jan/25/human-rights-court-corroding-support accessed: 11 January 2014.
[104] Nicolas Bratza, ‘Nicolas Bratza: Britain should be defending European justice, not attacking it’ The Independent (24 January 2012) http://www.independent.co.uk/voices/commentators/nicolas-bratza-britain-should-be-defending-european-justice-not-attacking-it-6293689.html accessed: 11 January 2014.
[105]The Home Secretary, Theresa May, said that “the treaty we’ve signed ensures that there are proper processes of exchange of evidence and will insure the treatment of Abu Qatada and others deported to Jordan”, BBC News UK, ‘Abu Qatada deported from UK to stand trial in Jordan’ (7 July 2013) http://www.bbc.co.uk/news/uk-23213740 accessed: 11 January 2013.
[106] Alan Travis, ‘Theresa May criticises human rights convention after Abu Qatada affair’ The Guardian (8 July 2013) < http://www.theguardian.com/world/2013/jul/08/theresa-may-human-rights-abu-qatada> accessed: 01 March 2014.
[107] Ibid.
[108] Eleanor Blatchley, ‘Proceed with Caution: British Ministers’ Relentless Attacks on Human Rights’ (Human Rights Watch, 17 August 2013) <http://www.hrw.org/news/2013/08/17/proceed-caution-british-ministers-relentless-attacks-human-rights> accessed: 01 March 2014.
[109] Francesca Klug, ‘A Bill of Rights: Do We Need One or Do We Already Have One?’ [2007] Public Law 701 at 712.
[110] [2007] 3 W.L.R. 222.
[111] Eleanor Blatchley, ‘Proceed with Caution: British Ministers’ Relentless Attacks on Human Rights’ (Human Rights Watch, 17August 2013) < http://www.hrw.org/news/2013/08/17/proceed-caution-british-ministers-relentless-attacks-human-rights> accessed: 01 March 2014.
[112] Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act (2006) at 4.
[113] Michelle Mitchell, ‘Why we should all give thanks for the Human Rights Act’ The Guardian http://www.theguardian.com/society/joepublic/2011/dec/09/human-rights-act-day-older-people accessed: 24 February 2014.
[114] Merris Amos, ‘Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer?’ (2009) 72 (6) The Modern Law Review 883, 883.
[115] Lord Chancellor and Secretary of State for Justice by Command of Her Majesty, ‘Rights and Responsibilities: developing our constitutional framework’ (Cm 7577, 2009) at p. 9.
[116] It was stated, in the Green paper, that it would be desirable to bring together in one place, the important responsibilities such as ‘treating National Health Service and other public-sector staff with respect… voting and jury service; reporting crimes and co-operating with the prosecution agencies; as well as more general duties such as paying taxes and obeying the law’, Ibid para 2.26 at p. 19.
[117] HM Government, The Coalition programme for government (May 2010) at p.11.
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/78977/coalition_programme_for_government.pdf > accessed: 10 January 2014.
[118] Geoffrey Bindman QC, ‘Defending our Rights ‘ (2012) 162 NLJ 1272, 1273.
[119] Constitutional Law Group, ‘Helen Fenwick: The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?’(UK Constitutional Law Association, 21 March 2013) http://ukconstitutionallaw.org/2013/03/21/helen-fenwick-the-report-of-the-bill-of-rights-commission-disappointing-conservative-expectations-or-fulfilling-them/ accessed: 09 January 2014.
[120] Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us, Vol 1 (2012) http://www.justice.gov.uk/downloads/about/cbr/uk-bill-rights-vol-1.pdf accessed: 09 January 2014; Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us, Vol 2 Annexes (2012).
[121] Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us, Vol 1 (2012) at [68], p. 26 http://www.justice.gov.uk/downloads/about/cbr/uk-bill-rights-vol-1.pdf accessed: 10 January 2014.
[122] Ibid
[123] Ibid at [88], p. 31.
[124] Ibid at [80], p. 28.
[125] Joint Committee on Human Rights, A Bill of Rights for the UK (2007-08, HL 165-I, HC 150- I) para [33], p.14.
[126] Joint Committee on Human Rights, The Human Rights Act: The DCA and Home Office Reviews (2005-06, HL 278, HC 1716) para [21], p.13; Joint Committee on Human Rights, The Work of the Committee in 2007 and the State of Human Rights in the UK (2007-08, HL 38, HC 270) para [3-4], p. 5- 6.
[127] Constitutional Law Group, ‘Helen Fenwick: The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?’ (UK Constitutional Law Association, 21 March 2013) http://ukconstitutionallaw.org/2013/03/21/helen-fenwick-the-report-of-the-bill-of-rights-commission-disappointing-conservative-expectations-or-fulfilling-them/ accessed: 09 January 2014.
[128] Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us, Vol 1 (2012) at [43], p. 18 http://www.justice.gov.uk/downloads/about/cbr/uk-bill-rights-vol-1.pdf accessed: 10 January 2014.
[129] Ibid at [44], p. 19.
[130] Ibid at [76], p. 28.
[131] Constitutional Law Group, ‘Helen Fenwick: The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?’ (UK Constitutional Law Association, 21 March 2013)
http://ukconstitutionallaw.org/2013/03/21/helen-fenwick-the-report-of-the-bill-of-rights-commission-disappointing-conservative-expectations-or-fulfilling-them/ accessed: 09 January 2014.
[132]__ ‘Balancing freedom and security –a modern British Bill of Rights’ (The Guardian, 26 June 2006) http://www.guardian.co.uk/politics/2006/jun/26/conservatives.constitution accessed: 7 November 2013
[133] Press association, ‘Cameron: I’d withdraw from human rights convention ‘to keep UK safe’ The Guardian (29 September 2013) http://www.theguardian.com/politics/2013/sep/29/david-cameron-human-rights-convention accessed: 9 January 2013.
[134] However, he pointed out that it would not be possible if the Conservatives were again in a coalition with the Liberal Democrats, Ibid.
[135] Peter Munce, ‘Profoundly Un-Conservative? David Cameron and the UK Bill of Rights Debate’ (2012) 83(1) The Political Quarterly 60, 60.
[136] Ben Russell, “Ken Clarke brands Cameron plan for Bill of Rights as ‘xenophobic’” The Independent (28 June 2006) <http://www.independent.co.uk/news/uk/politics/ken-clarke-brands-cameron-plan-for-bill-of-rights-as-xenophobic-405797.html> accessed: 04 March 2014. See also Peter Munce, ‘Profoundly Un-Conservative? David Cameron and the UK Bill of Rights Debate’ (2012) 83(1) The Political Quarterly 60, 60.
[137] Francesca Klug, ‘A bill of rights: do we need one or do we already have one?’ (2007) Public Law 701, 716. See also Article 2 of the Treaty on European Union, which states that ‘The Union is founded on values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.’
[138] Frances Webber, ‘UK: the way to pariah status in Europe’ (2013) 55 (2) Race & Class 99, 104.
[139] Press association, ‘Cameron: I’d withdraw from human rights convention ‘to keep UK safe’ The Guardian (29 September 2013) http://www.theguardian.com/politics/2013/sep/29/david-cameron-human-rights-convention accessed: 9 January 2013.
[140] Jesse Norman and Peter Oborne, Churchill’s Legacy: The Conservative case for the Human Rights Act (Liberty (National Council for Civil Liberties), London 2009) [Pamphlet] at 28 < http://www.liberty-human-rights.org.uk/policy/reports/churchill-s-legacy-the-conservative-case-for-the-hra-october-2009.pdf> accessed 31 October 2013.
[141] Parliamentary Archives, General Election Timetable 2015 <http://www.parliament.uk/about/how/elections-and-voting/general/general-election-timetable-2015/> accessed: 11 January 2014.
[142] Jesse Norman and Peter Oborne, Churchill’s Legacy: The Conservative case for the Human Rights Act (Liberty (National Council for Civil Liberties), London 2009) [Pamphlet] at 15, 16 <http://www.liberty-human-rights.org.uk/policy/reports/churchill-s-legacy-the-conservative-case-for-the-hra-october-2009.pdf> accessed 31 October 2013.
justitiasensus 