Theresa May and Keir Starmer disagree about whether human rights impede effective counterterrorism.  Both bring experience at the coalface of this field, May as former Home Secretary, and Starmer as former DPP responsible for the prosecution of terrorist cases. Who is right?  There is no point in pretending that human rights do not present legal constraints on counterterrorism powers. Nevertheless, the constraints that do exist are certainly not as restrictive as rights opponents would like us to believe. Moreover, it is crucial to distinguish between legal constraints, and the notion that these constraints constitute practical impediments on the effective prevention and punishment of terrorism. The debate is full of confusion between the two. This post will deal only with the first question of legal constraints, as the second is a matter of empirical proof. Before we can proceed with the normative project of changing human rights protections, a process that has far wider implications for human rights in general and our liberal democratic culture, any government has to provide persuasive evidence that human rights do in fact stand in the way of security. The present government, for as long as it lasts, would also need to dispose of the charge that a 13 % reduction in police numbers over the last six years is less significant in the fight against terror, than the human rights constraints that guide police action.

Turning to the legal picture, most Convention rights may be qualified on the basis of national security, as long as they have a legal basis and are proportionate to this objective.  In this space a significant range of coercive counter-terrorism measures are rights compliant.

As Fiona De Londras notes:  ‘UK law contains extensive provisions to prevent and criminalise all forms of engagement with terrorism, including powers relating to data surveillance, disruption of terrorist financing, criminalisation of travelling for terrorist purposes, and the criminalisation of all forms of support for terrorist activities. Human rights law has not prevented the UK from developing and implementing these laws’.

For example, Prevent, the strategy of pre-empting radicalization by placing reporting duties on educational institutions, makes a lot of us uncomfortable. But no one has successfully argued in a Court that it cannot be legally justified within the qualifications on freedom of expression under the Convention.  As regards, privacy the UK Investigatory Powers Act 2016 includes the most extensive bulk surveillance powers of any liberal democratic State. This Act is partly the result of European human rights decisions which require sufficient legal oversight, and a precise and foreseeable legal basis for surveillance powers, which encroach upon the right to privacy. While these requirements may have shaped the legal basis through which these powers are framed, the Government believes that the substantive powers of secret surveillance are rights compliant. This is not without some justification, as ECtHR decisions have been slow to produce substantive blocks on secret surveillance. Notwithstanding, Liberty has launched a judicial review action against the bulk surveillance powers in the Act in the Investigatory Powers Tribunal. It remains to be seen whether they will be successful.

As regards the retention and privacy of our own mobile and internet communications metadata, however, the CJEU has been more proactive. The recent Watson decision has produced some significant constraints on the retention of mobile phone data by communication service providers and this will require amendment of the Act. Brexit may weaken such rights protections within the UK, but EU guarantees will continue to have an impact on the exchange of such data between EU and UK security actors (Schrems). These are limitations on powers that David Anderson QC, former Independent Reviewer of Counterterrorism legislation, argues are indeed valuable in the fight against terror. Moreover, May has mentioned wanting to undo the encryption and privacy of Whatsapp communications. So the chances are that the powers here will become a matter of some political contention as we move forward. Given the recent election result, it is possible that a minority government will want to avoid this fight. Not least as these are powers that affect all UK citizens, and not the just terrorist suspects who are easily maligned in the political debate.

While the rights to fair trial and liberty are not explicitly qualified in the language of the Convention, the Courts have interpreted these flexibly in the context of national security. The ancient common law right of habeas corpus, enshrined in Article 5 ECHR, does not stop pre-trial detention for 14 days, or its extension up to 28 days, where objective conditions of reasonable suspicion are met and safeguards are in place. The right, along with Article 8 (right to private life) does not stop powers to question and search at the border (Beghal); stop and search on suspicion of carrying an offensive weapon (Roberts); and alternative methods of liberty control under the Terrorism Prevention and Investigation Measures Act 2011.  In all of these contexts courts require that the powers have some specific legal foundation and are consistent with statutory norms protecting against racial discrimination (Roberts). The Court of Appeal has also been particularly critical when question and search powers are used for non-specified purposes when freedom of journalistic expression is engaged (Miranda).  Equally, the UK courts require a proper set of criteria against which reasonable suspicion can be tested (Canning). The conditions set by the Court in all of these circumstances vary, but May could seek to redeploy powers of stop and search without suspicion for which she would need to derogate from Article 8 (Gillan).

May has also suggested that she will want to extend the current period of pre-trial detention from 28 days. Article 5(1)(c) of the ECHR foresees the possibility of preventive or pre-trial detention ‘when it is reasonably considered necessary to prevent his committing an offence’. The High Court of Northern Ireland, citing ECtHR authority, has held that, subject to regular review on specified legal criteria demonstrating continuous reasonable suspicion, the period of time for which someone can be reasonably detained pre-charge is not fixed in the abstract, but must be evaluated on the circumstances of each case (Duffy). So to be clear, the current limit of 28 days has not in itself been specified by a court, rather it was the product of a series of heated Parliamentary debates and political interventions. If May wishes to extend this time period, it will again be Parliament’s decision. She would do well to remember that this was the question on which Tony Blair (who governed with a significant Parliamentary majority at the time) suffered his first parliamentary defeat.

Secret evidence used in closed material proceedings (CMPs) are used when imposing control measures, and in asset freezing procedures. These secret processes have been tolerated by the ECtHR which set minimum safeguards of disclosure in A v UK. The English courts are less tolerant of the use of secret evidence under common law (Al Rawi), and require a statutory scheme to be present. In Bank Mellat, however, when faced with pressing national security concerns the Supreme Court majority felt it had to find ingenious ways to imply CMPs into the Constitutional Reform Act 2005. As a consequence, we now have an extensive statutory scheme under the Justice and Security Act 2015 in which CMPS can be used in any civil proceeding which involves national security issues. The range of legal process in which secrecy is tolerated on national security grounds is thus vastly broader than it was ten years ago. So mush so, that critics accuse the courts of ‘normalising’ secrecy over time. There are also fair trial requirements under Article 6 that give terrorist suspects rights to legal advice, but the ECtHR in Ibrahim proved remarkably flexible in its approach to the right in the context of terrorist attacks. This flexibility is no less evident as regards the right to silence and rights against self-incrimination (Beghal and O’Donnell).

The question lies with the absolute rights of the Convention: the right to life and the prohibition of torture in particular.  Absolute rights cannot be qualified or derogated from, so Parliament itself would be unable to overturn these limitations. It is worth remembering that the right to life places a range of positive obligations of prevention, prosecution, and punishment on States (Osman).  In this way, the right to life serves as a mechanism of public protection.  On the other hand, the right to life constrains arbitrary use of lethal force. Any use of lethal force which is based on honest and genuine subjective beliefs of imminent harm (Da Silva) is, however, well within the human rights framework. So there is no doubt that police have the space within human rights law to shoot terrorists in the heat of a lethal attack.

A clear issue here is torture, the use of evidence obtained under conditions of torture, and the prospect of deporting a terrorist suspect to a country where torture is a threat. On the first issue, international and European human rights law reflects the common law’s longstanding tradition of absolutely prohibiting the use of evidence obtained by torture (Abu Qatada). The House of Lords in A v Secretary of State for the Home Department reaffirmed the longstanding position that torture evidence was offensive to the common law. It will take more than withdrawing from the ECHR to get around the common law’s proud tradition. Nothing less than express statutory words would satisfy the English courts, so this would be an argument May would have to win in Parliament, an unlikely prospect in the current political climate.

The prohibition on deporting terrorist suspects to countries where torture is prevalent remains a matter of political contention. The ECHR reflects the international law rule of non-refoulement which absolutely prohibits deportation where a real risk of torture exists. May has a particular history here, in her long attempt to deport Abu Qatada to Jordan. What the ECtHR said in that case was clear. There had to be a persuasive and meaningful diplomatic assurance that the real risk of torture would be removed. It set conditions for such assurances, which when applied by the English court stopped the deportation process. In such cases, authorities in the UK would have to fall back on existing control mechanisms where there is reasonable suspicion that the individual is likely to commit a terror attack.

As regards accountability for complicity of UK agencies and government officials, the Supreme Court has recently held in Belhaj that that the English courts are not barred by state immunity or the doctrine of foreign act of state from hearing claims in torts for any complicity in unlawful detention, rendition and torture, committed by other states in overseas jurisdiction. This important decision vindicates the view of a range of security actors, not least the former head of M15, that the UK should have no involvement whatsoever in such activity.

Finally, before the election the Government proposed to derogate from human rights protections under Article 15 ECHR in relation to certain human rights obligations of armed forces overseas (see also Holcroft Emmes). The proposals and the JCHR enquiry were stopped short by the general election. The impetus came after the Al Sweady inquiry’s finding that a significant number of allegations of abuse by the British military were ‘wholly and entirely without merit or justification’ and were ‘were the product of deliberate and calculated lies on the part of those who made them’ (para 737, exec summary). Since then various actions against lawyers involved in the allegations have been taken. Although Phil Shiner was struck off the solicitors roll, Leigh Day has been exonerated on all 19 charges of misconduct. The fallout from Al Sweady was exploited in a Policy Exchange report proposing broad derogations from human rights law for the purpose of avoiding false allegations in the future. The report also used the controversy to make the further claim that human rights undermine the operational effectiveness of the Armed Forces in general. Many human rights and international lawyers are critical of the report, and the evidence to the JCHR enquiry is similarly critical of the government’s proposals. It remains to be seen whether these proposals go forward in the current political upheaval, but if Parliament does decide to back such proposals they will need to be sure that they are strictly necessary and proportionate in accordance with international obligations  (Article 15 ECHR). Ultimately this question will be a matter for the UK and European Human Rights courts. The UK’s derogation from Article 5 was famously struck down by the House of Lords in the Belmarsh case, mostly on the basis that the derogation resulted in discrimination against a class of non-citizens. But the possibility of derogating control orders was retained in the Prevention of Terrorism Act 2005 until 2011 when the coalition government replaced the scheme.

While most human rights require justification of the proportionality of counter-terrorism measures, a precise legal footing, or the strict necessity of derogation measures, Courts have proven pragmatic and flexible in their interpretation of rights protections in the face of public security. While May claims she wants to be more coercive of terrorist suspects, our personal mobile and Internet privacy is also at stake. It falls to the Government to submit evidence where existing human rights safeguards have undermined the effective use of counterterrorism powers. Those constraints that do exist are embedded in the common law tradition, and represent the basic minimum guarantees of a decent liberal democratic order. May took the populist option of pitting rights against security just days before a general election in which her authority was significantly undermined. It is hard to shake the suspicion that she was doing this to distract the public from the fact that she had reduced police numbers as Home Secretary (a policy which ironically, could be criticized on human rights grounds for undermining the State’s capacity to fulfill its positive obligations under Article 2 to protect the right to life of those at risk of terrorist attack). At the very least, May’s political turn was aimed at consolidating her own power rather than enhancing our security.  If she survives the next few weeks as Prime Minister, there is every chance that she will seek, at least rhetorically, to exploit our fears again and attack human rights protections. Whether she will have the ability to get this through Parliament is another matter.

Liora Lazarus is a Fellow of St. Anne’s College and an Associate Professor in Law at Oxford University.

(Suggested citation: L. Lazarus, ‘Do Human Rights Impede Effective Counterterrorism?’, U.K. Const. L. Blog (15th Jun 2017) (available at https://ukconstitutionallaw.org/))