The Future of Counter-terrorism and Human Rights - Justice

The way forward
In the nearly six years following 9/11, it has been commonplace to talk of the ‘new
normal’: the idea that the heightened threat of terrorism requires the public to
become accustomed to things formerly regarded as exceptional, whether it be
concrete barriers in front of public buildings, longer security checks for boarding
planes, or the more general idea of a ‘rebalancing’ of liberty and security.
Accompanying this idea of a shift in normalcy is a sense that what is happening (ie
deadly terror attacks on civilians) is new and unprecedented. Al Qaeda, we are told,
are not the gentleman bombers that the IRA were. And it is indeed true that new
technologies – from the internet to more sophisticated types of explosives, etc –
make it possible for smaller numbers of people to plot the deaths of many.
Whether in fact the threat from Al Qaeda is qualitively very different from that posed
by the IRA – one assumes that the difference matters very little to the families of their
victims in either case – it seems clear that behind talk of the ‘new normal’ is a very
old and very familiar set of legislative mistakes: sweeping definitions; rushed
legislation; unnecessary and ineffective measures passed in response to a threat of
unknown extent. They are all mistakes that government has made in the past and
will, indeed, continue to make so long as it heeds the clamour of public safety above
all else.
Of course, the demands of public safety come not only from the public themselves
but also those bodies charged with protecting it: the police, the security and
intelligence services. And it is the weight given to the expertise of these agencies that
tends to count for most in the security debate – whether it is the arguments made
by police for extending pre-charge detention being debated in Parliament, or the
briefings provided by MI5 to the Home Secretary as to whether a given suspect is
involved in terrorism. Moreover, it is to this combination of democratic legitimacy
and technical expertise that the government firmly maintains the courts should defer
when assessing the proportionality of counter-terrorism measures. 122
There are, however, good reasons to doubt the claims of government and
Parliament to what has been termed by the courts as its ‘relative institutional
competence’ in the field of national security. 123 First, as a matter of record, it is
possible to point to numerous high-profile failures of intelligence since 9/11: for
instance, the belief that Iraq possessed weapons of mass destruction; the belief that
122 See eg Rehman v Secretary of State for the Home Department [2001] UKHL 47 per Lord Hoffman; A and others v
Secretary of State for the Home Department [2004] UKHL 56 per Lord Bingham at para 29.
123 See eg R (Gillan) v Commissioner of Police for the Metropolis [2006] UKHL 12 per Lord Bingham at para 17: ‘In the
result, therefore, the House has before it what appear to be considered and informed evaluations of the terrorist
threat on one side and effectively nothing save a measure of scepticism on the other. There is no basis on which the
respondents' evidence can be rejected. This is not a question of deference but of what in A v Secretary of State for the
Home Department [2004] UKHL 56, [2005] 2 AC 68, para 29, was called “relative institutional competence”’.
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The Future of Counter-terrorism and Human Rights
A JUSTICE Futures paper