‘Reconciling international human rights law with executive non-trial-based counter-terror measures: the case of UK temporary exclusion orders’

Fenwick, H

Abstract

Non-trial-based measures, in particular executive detention, have at various times been resorted to by democracies as part of their counter-terror strategies. Western democracies are facing an unprecedented rise in ‘home-grown’ terrorism; the threats they currently face come mainly from their own citizens. Non-trial-based measures—control orders, TPIMs and now temporary exclusion orders—have been designed to test the limits of human rights’ law, in particular of the substantive rights to liberty, freedom from torture or inhuman or degrading treatment, and to private life, but to seek to avoid violating them. But in so doing, they have tended to rely on a minimising recalibration of such rights, since the choice has been made not to accompany the measures with derogations, after a derogating measure, detention without trial, for use only against non-citizens, was found to breach aspects of the ECHR in 2004. Post-2005 reliance on more repressive non-trial-based measures that would clearly or possibly have necessitated a derogation has been accepted by Parliament, but not so far actioned. As has been pointed out many times, reliance on such measures, as a recourse running alongside the criminal process, tends to undermine the moral legitimacy of the use of state power as compared to the claims of terrorists and represents a departure from expected and assumed adherence to constitutional values in a democracy. The unease with which democracies approach the use of such measures, especially against their own citizens, is the subject of this paper, which focuses on their use and underuse over the past ten years in the UK. It argues that the desire to maintain constitutionality while protecting security creates compromises which mean that use of such measures satisfies neither objective: a cycle arises within which a more repressive iteration of the measure is introduced unaccompanied by a derogation, necessitating a recalibration of rights to accommodate it, combined with executive self-restraint in deploying it; human rights-based court and Parliamentary decisions then ‘ameliorate’ the measure and normalise it, but at the same time arguably diminish its efficacy and it falls further into dis-use; security concerns then demand the reintroduction of a more repressive iteration of the measure, threatening to restart the cycle.

• Online Publication Date: Mar 18, 2018
• Publication Date: 2018
• Deposit Date: Sep 27, 2017
• Publisher: Springer Verlag
• Pages: 121-156
• Series Title: Ius Gentium: Comparative Perspectives on Law and Justice
• Series Number: 64
• Book Title: The Rule of Crisis: Terrorism, Emergency Legislation and the Rule of Law
• ISBN: 9783319744728
• Public URL: https://durham-repository.worktribe.com/output/1661573
• Additional Information: Originated from presentation at Conference "The Rule of Crisis: Crisis Legislation, Emergencies and the Rule of Law", Maison Française d'Oxford, 29 April 2016. https://www.law.ox.ac.uk/events/rule-crisis-crisis-legislation-emergencies-and-rule-law
• Contract Date: Sep 27, 2017