Security Detention - United Kingdom Practice

By McGoldrick, Dominic | Case Western Reserve Journal of International Law, Fall 2009 | Go to article overview

Security Detention - United Kingdom Practice


McGoldrick, Dominic, Case Western Reserve Journal of International Law


This article assesses the role of security detention within the context of a number of the United Kingdom's anti-terrorism policies. It considers the U.K. provisions on indefinite detention and the judicial response to those policies. Close attention is given to the Prevention of Terrorism Act 2005 (PTA 2005), and in particular the detailed regime of "control orders" it introduced. The different substantive and procedural bases for judicial challenges to control orders are illustrated by reference to the leading judicial decisions. The challenges have principally been based on the human rights provisions in the European convention on human rights. These have been given a degree of domestic incorporation by the Human Rights Act (1998). Consideration is given to the future use of control orders and how an "exit strategy" from them could be devised. Finally, the article analyses the place of security detention within the context of other policy options that form part of an Anti-Terrorism Strategy. It is submitted that none of them is cost-free in human rights terms.

I. INTRODUCTION: THE U.K. AND TERRORISM

The U.K. has assumed a leadership role on the War on Terrorism, serving as the principal ally of the United States in the War on Terrorism generally, and the wars in Afghanistan and in Iraq in particular. (1) The U.K.'s Security Service (MI5) monitors the activities of 200 terrorist networks, involving some 2,000 suspects. (2) Its domestic anti-terrorism law is wide-ranging, highly sophisticated, and reflects a variety of anti-terrorist policies. (3) Under the Human Rights Act 1998 (HRA), all of that legislation can now be tested for its compatibility with the European Convention on Human Rights (ECHR). The HRA represents an ingenious construction that impacts on legislative, executive and judicial powers, and involves all institutional actors in rights review. (4) Under HRA Section 3, all legislation must "so far as it is possible to do so" be read and given effect in a way that is compatible with the ECHR. (5) It if is not possible, the higher courts can issue a "declaration of incompatibility" under Section 4 of the HRA. (6) In all cases so far, these have been followed by remedial legislation. (7) Finally, under Section 6 of the HRA, it is unlawful for a public authority to act in a way which is incompatible with any Convention rights. (8) In any historical circumstances the HRA would have represented a significant challenge to the U.K. constitutional system. The post 9/11 context has subjected the HRA to the most searching forensic testing conceivable. (9)

This article assesses the role of security detention within the context of a number of U.K. anti-terrorism policies. Part II considers the U.K. provisions on indefinite detention and the judicial response to those policies. Part III examines the Prevention of Terrorism Act 2005 (PTA 2005), and in particular the detailed regime of "control orders" it introduced. Parts IV-VI considers the different bases for judicial challenges to control orders. Part VII considers the future use of control orders. Finally, Part VIII puts security detention within the context of other policy options that form part of an Anti-Terrorism Strategy.

II. CONTROLLING THE TERROR THREAT: THE ATSCA PART 4 REGIME FOR INDEFINITE DETENTION

Responding to the attacks of 9/11, the U.K Parliament passed the Anti-Terrorism, Crime, and Security Act of 2001 (ATCSA), which modified the Terrorism Act of 2000. (10) The most controversial new measures in the ATCSA were those in Part 4, entitled "Immigration and Asylum," which permit indefinite detention for foreign nationals suspected of being international terrorists. (11) These provisions required the U.K. to derogate from Article 5 of the ECHR and Article 9 of the International Covenant on Civil and Political Rights (ICCPR). (12) Section 21 of ATCSA provided that the Home Secretary could certify an individual as a "suspected international terrorist" if the Secretary reasonably believed that that person's presence in the U. …

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