Counter-terrorism and public order legislation

8. Counter-terrorism and public order legislation designed to protect everyone can risk undermining several human rights

Since the 9/11 attacks, governments around the world have needed to take additional measures to protect their citizens from the threat of terrorism. While it is crucial for government to protect public safety, it has to balance this with its obligations to protect the rights of all individuals. The review identified problems with the interpretation and implementation of counter-terrorism legislation domestically, and with Britain's international count er-terrorism activities.

The review is critical of the impact of counter-terrorism legislation on legitimate expression of political views and gatherings. It found that the definition of terrorism is still too broad and criminalises lawful protests and political expression, as well as the terrorist acts which parliament intended.

The definition of terrorism is still too broad and criminalises lawful protests and political expression.

Stop and search powers under the Terrorism Act 2000 have been widely criticised by the JCHR and human rights organisations for risking breaches to Articles 5, 8 and 14. Stop and search without reasonable suspicion may sometimes be necessary to prevent an immediate act of terrorism, or to search for perpetrators or weapons following a serious incident. But police have used stop and search powers against peaceful protestors and disproportionately against black and Asian people. The European Court of Human Rights has found the powers to stop and search under sections 44-47 of the Terrorism Act 2000 powers to be unlawful. The Protection of Freedoms Bill proposes changes to stop and search powers and it will be important these create a regime which respects human rights.

The review also finds problems with counter-terror measures against individuals suspected of terrorist offences. Over the past decade governments have tried to increase the maximum period for pre-charge detention with judicial authorisation for suspected terrorism-related offences. The current 14 day detention period is considerably less than the government's 2008 proposal for 42 days, but considerably longer than the four days permitted for individuals charged with a criminal offence. Extended periods of pre-charge detention risk breaching Article 5, the right to security and liberty, as people who have not been charged with an offence should not be deprived of their liberty for an excessive length of time. The UN Human Rights Committee and UN Human Rights Council have recommended strict time limits for pre-charge detention and that any terrorist suspect arrested should be promptly informed of any charge against him or her and tried in court within a reasonable time or released.

Control orders and Terrorism Prevention and Investigation Measures (TPIMs) are another controversial area of counter-terror legislation which allow the Secretary of State to impose strict conditions on a terrorist suspect's movements and social contacts. Control orders were intended to be used against the small number of people whom the government believed to represent a threat to the security of the country, but for whom it had insufficient evidence to prosecute. These restrictions on liberty were based on reasonable suspicion of what a person might do, rather than as punishment following conviction for a criminal offence, and so take place outside the usual criminal law process. The UN Human Rights Committee and JCHR were critical of control orders that restrict the liberty of an individual who has not been charged with a criminal offence and the orders have been successfully challenged in the domestic and European courts in relation to Articles 5 and 8, the rights to liberty and security and to a private and family life. Courts have also found that the process by which control orders are granted, which involves the use of closed material, breaches Article 6, the right to a fair trial.

TPIMs replaced control orders, but still allow significant restrictions to be placed on people who are reasonably believed to be involved in terrorism-related activities, but have not been convicted of any offence. The government has stated that these will meet human rights obligations. However, the JCHR is critical of TPIMs and their compliance with human rights. The Commission believes the TPIM approach lacks important safeguards to protect human rights and may still fail to comply with the rights to liberty and security and the right to a fair trial, as well as Article 8 and 14 rights.

'Closed material procedures' have been introduced to deal with cases involving the use of sensitive material which the government fears cannot be made public without damaging national security. This means that some evidence is heard in secret; neither the person involved in the proceedings nor their representatives are told what it is. Instead, a ‘special advocate’ – appointed by the Attorney General – examines the closed material and represents the interests of the person affected in closed sessions. Any communication between the special advocate and the person whose interests they represent is prohibited without the permission of the court and the government. This means that a case may be decided against someone without that person ever finding out the reasons why. The use of closed material is expanding and is now used across tribunals, civil and criminal courts – and the government is proposing to expand it further. The closed material procedures risks breaching Article 6, the right to a fair trial.

Britain has an extensive legal framework regulating public protest. However the public order legislation is complex and very broad. Police sometimes do not understand their powers and duties and do not always strike the appropriate balance between the rights of different groups involved in peaceful protest. Protests in and around parliament are subject to overly restrictive authorisation rules. Managing modern protest can be difficult and challenging, with the police required to engage directly with protesters in fast-moving and volatile situations which may be provocative, intimidating and sometimes violent. On occasion, the use of containment has prevented violence between two conflicting groups of protesters. Even when containment is justified, the police must seek to reduce its impact on peaceful protesters and other bystanders. Police use of force to manage a protest can also prevent harm to people or damage to property. Criminal and common law require the use of force to be reasonable. Excessive force is unlawful and may violate Articles 2, 3 and 8. However there is no common view among police forces about the meaning of reasonable force and the police do not always use the minimum level of force when policing protests.

The use of surveillance, the infiltration of peaceful protest organisations, pre-emptive arrest or detention of individuals who have committed no criminal offence and the use of civil injunctions against protestors by private companies undermines the right to freedom of peaceful assembly and association with others.

Last Updated: 28 Apr 2014