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Saturday, 25 October 2014

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Debate asks ‘are Human Rights a luxury?’

IF you thought that under British law you could not to be imprisoned without charge and trial, you would be wrong.

Since 9/11, counter-terrorism measures have whittled away rights that have been the basis of our legal system since Magna Carta.

At the latest Hexham Debate – After 9/11, are Human Rights a luxury? – Helen Fenwick, professor of law at Durham University, identified two opposing narratives: the need to respond effectively to the threat of terrorism, and the right of the individual to be protected from the arbitrary authority of the state.

In a closely-argued presentation, Prof. Fenwick laid out the tensions between these two ideas and explored the legal tangles that have been thrown up by the Human Rights Act (HRA).

When the Labour Government passed the HRA in 1998, it balanced its liberalism with the Terrorism Act 2000, which identified a broad range of terrorism offences. Those charged under the Act had to be brought to trial in a criminal court case.

A year later ‘the world turned on its axis on 9/11,’ Prof Fenwick said. The catastrophe happened before the HRA had ‘bedded down’ and become accepted as a way of protecting civil liberties in Britain.

To address the threat of a similar atrocity happening in Britain, the Anti-Terrorism Crime and Security Act (ATCSA) was passed in 2001, which allowed for the detention without trial of non-nationals suspected of being international terrorists. Predictions that the new law would lead to thousands being incarcerated were not fulfilled, but the question remained: why could those who were detained for lengthy periods not be brought to trial?

The Home Office has consistently justified not taking suspects to court by claiming that a trial would risk compromising intelligence sources. Deporting suspects has proved to be fraught with problems.

Furthermore, to the embarrassment of the Government, the Law Lords eventually found that key aspects of ATCSA were incompatible with the Human Right Act because the draconian measures failed the ‘proportionality test’ by going further than was warranted by the present threat.

Faced with having to abandon one of its key anti-terror measures because of the restrictions imposed by the HRA, the Prevention of Terrorism Act 2005 was passed which introduced Control Orders. Among the restrictions which these impose are curfews, electronic tagging and forced relocation, all of which can be ordered without the case being argued in open court.

How far Control Orders and their successors under subsequent Acts are compliant with the HRA is still being argued, but Prof. Fenwick claimed that their presence on the statute books represents ‘a covert recalibration of the fundamental right to liberty and an insidious attenuation of human rights.’

The Government continues to seek to clothe its anti-terror measures with legal authority, Prof. Fenwick said, but pressure is growing to repeal the HRA and withdraw from the European Convention on Human Rights. The dilemma is whether – in seeking to protect Britain – we hand ultimate victory to the terrorists by ourselves destroying the very freedoms that define us.

The next Hexham Debate is tomorrow at the St Mary’s Centre, 11am-12.30pm, when Prof. Paul Rogers, (department of peace studies, Bradford University), will address the vexed question of drones, taking as his topic Security by remote control: can it work?

A video of the talk is at www.northumbriaquakers.org.uk/pages/hexhamdebates.html

Caroline Westgate

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