The Human Rights Act and Anti-Terrorism in the Uk: One Great Leap Forward by Parliament, but Are the Courts Able to Slow the Steady Retreat That Has Followed?

17817 words 72 pages
Public Law
The Human Rights Act and anti-terrorism in the UK: one great leap forward by Parliament, but are the courts able to slow the steady retreat that has followed?
David McKeever Subject: Human rights. Other related subjects: Administrative law. Criminal law
Keywords: Administrative law; Freedom of expression; Inhuman or degrading treatment or punishment; Terrorism; Torture
Legislation: Human Rights Act 1998 Counter-Terrorism Act 2008 Terrorism Act 2006 Anti-terrorism, Crime and Security Act 2001 Terrorism Act 2000
European Convention on Human Rights 1950 art.3, art.10
Cases: A v Secretary of State for the Home Department [2005] UKHL 71; [2006] 2 A.C. 221 (HL) A v Secretary of State for the Home Department [2004] UKHL 56; [2005]
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Nevertheless, whatever positive or negative impact the Act is perceived to have, it should not be assumed that the Act is necessarily assuming de facto entrenched status. One element of the Conservative Party manifesto in the 2005 General Election was to repeal parts of the Human Rights Act.16 The current leader of the Conservative Party (at time of writing, 12-14 per cent ahead in opinion polls) has frequently vowed to scrap the HRA, replacing it instead with a “Bill of Rights”; one explicit basis for so doing is the perceived barrier the Act presents to addressing terrorism.17 Criticism of the HRA and its implementation by the courts has not been limited to the Opposition. In December 2008, the Justice Secretary (who as Home Secretary had himself introduced the HRA in 1998) stated that he was “greatly frustrated” at the way the HRA was sometimes interpreted by the courts, could understand why some saw the HRA as a “villain's charter”, and announced plans to “rebalance” the Act.18 In March 2009 the Government published a green paper on a potential Bill of Rights; the stated aim was not to create additional rights that will be enforceable in domestic courts, but rather to codify existing rights and to “balance” the HRA by emphasising individual responsibilities to society.19
Defining terrorism
An obvious starting point in any discussion of anti-terrorism measures is defining that which recent measures seek to counter. As widely discussed, however, agreeing on a